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Some of the advocacy groups commenting on the recent 5-4 decision of the U.S. Supreme Court in Garcetti v. Ceballoshave suggested that dishonest politicians will now have a field day, confident in the belief that they can intimidate, discipline or fire any employee who dares to challenge them, even in matters involving public corruption. Lawyers who have actually read the opinion, even quickly, however, are aware that government employees who speak out “as citizens” on matters of “public concern” are still protected under the First Amendment. And this writer believes further that thoughtful practitioners who have read the decision carefully should further conclude that the real significance of Garcettiis not in how it has changed the public employment landscape, but in how it has not: An opposite result, allowing plaintiff Richard Ceballos to proceed with his First Amendment whistleblower claim, might have placed an enormous burden not only upon the courts, but also upon the executive branches of all federal, state and local governments. Ceballos was a prosecuting attorney for the Los Angeles district attorney’s office who disagreed with a decision by his office to proceed with a criminal case. After conferring with opposing counsel and concluding that a search warrant affidavit was inaccurate, he caused a bitter internal dispute within the office and was overruled. Although Ceballos insisted that the case be dismissed, the DA’s office proceeded to a hearing on the validity of the warrant, and prevailed despite Ceballos’ testimony for the defense. Presumably, his superiors lost confidence in his professional judgment based upon this on-the-job “speech,” which may have had something to do with his later reassignment to less desirable prosecutorial duties. In a decision that turned on the votes of newly confirmed justices John G. Roberts Jr. and Samuel A. Alito Jr., the Supreme Court held that Ceballos’ supervisors should be allowed to make that judgment about his professional abilities without being second-guessed by the courts on the ground of free speech. The court was understandably concerned that if the decision had gone the other way, public employees would have been empowered to “constitutionalize the employee grievance,” allowing still more employment suits to overburden the federal courts. But perhaps more importantly, as Justice Anthony M. Kennedy wrote on behalf of the majority, “to hold otherwise would be to demand permanent judicial intervention in the conduct of governmental operations to a degree inconsistent with sound principles of federalism and the separation of powers.” The majority was unwilling to allow such a judicial intrusion into the prerogative of the executive to control the conduct and speech of government employees in their official duties. Avoiding internal strife
SUPREME COURT REVIEW
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