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When Los Angeles County Deputy District Attorney Richard Ceballos learned that a sheriff’s deputy may have lied in an application for a search warrant, he felt duty bound to inform the defendant’s lawyer and to testify about his suspicions at a court hearing. His reward for speaking out was a demotion, or so he claimed in a federal lawsuit accusing his superiors of violating his free-speech rights. When the case reached the 9th U.S. Circuit Court of Appeals, it sparked a debate between Judges Stephen Reinhardt and Diarmuid F. O’Scannlain over an issue that has divided the circuits: whether public employees enjoy any First Amendment protection for statements made in the ordinary course of carrying out their employment duties. The case is Ceballos v. Garcetti, No. 02-55418, decided on March 22. Writing for a 2-1 majority, Reinhardt reaffirmed the 9th Circuit’s position, first enunciated in 1988, that as long as a public employee’s speech touches on a matter of public concern, it comes within the ambit of the First Amendment (although whether the employee will actually be protected against retaliation depends on an additional test that balances his interests against those of the employer). Being bound by that 1988 precedent, O’Scannlain concurred in the majority’s result, but urged the en banc 9th Circuit — or, if necessary, the U.S. Supreme Court — to re-examine the issue. O’Scannlain argued that the Supreme Court’s decision in Connick v. Myers, 461 U.S. 138 (1982), affords First Amendment protection only when a public employee speaks “as a citizen expressing his or her personal views on disputed matters of public import,” not when “carrying out his or her ordinary employment duties.” A MURKY LINEUP O’Scannlain followed closely the reasoning of the en banc 4th Circuit in 2000′s Urofsky v. Gilmore, 216 F.3d 401, which upheld a Virginia statute prohibiting professors at state universities from viewing obscene materials on their office computers. The position of the other circuits is a bit murkier. O’Scannlain pointed to panel decisions by the 5th, 6th, 7th, 8th and 10th circuits suggesting that speech in the course of employment is beyond the protection of the First Amendment. But he conceded Reinhardt’s point that subsequent panels in those circuits have said that speech dictated by one’s employment may be of sufficient public interest to merit protection under Connick. Reinhardt counted the 2nd, 3rd, 5th, 6th, 7th, 10th and 11th circuits in his camp. Notably, he did not claim the 8th Circuit, perhaps because it gave little explanation for what appears to be a change of course in a 2003 decision. O’Scannlain said that the citizen/employee divide is justified by the fact that public employees like Ceballos are speaking not for themselves but for the government, and “the Government has no First Amendment rights.” Also, he said that Reinhardt’s position is on a collision course with Supreme Court decisions giving the federal government authority to dictate the content of speech that it has affirmatively sponsored. Reinhardt disputed his colleague’s reading of Supreme Court precedent, but also rested his argument on the incongruity between protecting someone like Ceballos if as a citizen he were to take his suspicions to the press, while giving him no protection for being a good employee and trying to remedy the problem within the system. Young’s e-mail address is [email protected].

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