Wednesday, March 22, 2006

Reading the Alito Tea Leaves on Public Employee Free Speech

Scales_1As some of you might know, the Supreme Court yesterday heard reargument in the public employee case of Garcetti v. Ceballos (see previous posts on this case here and here).  To refresh, Ceballos concerns a case in which:

Ceballos wrote a highly critical memorandum to his supervisors after he determined the sheriff's deputy had lied in the affidavit.

When his supervisors rejected his recommendation to drop the case, Ceballos told the defense attorney about what he thought were the deputy's lies and testified for the defendant at trial.

One of the more interesting aspects of this reargument was to see what types of questions Justice Alito would ask of the litigants and whether those questions would give any indication about how far he believes courts should go in interjecting themselves into public employment free speech disputes.

Here's what Alito had to say during the oral argument according to the Associated Press:

Alito actively questioned all lawyers in the case, wondering whether employers would have to specify every job duty an employee has to avoid lawsuits like the one Ceballos filed.

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When Alito suggested employers want to know about problems, [the employee's attorney] said there is "much evidence" that supervisors don't always like receiving "bad news."

Kind of like reading tarot cards from these sparse remarks, but my best guess would be that Justice Alito is skeptical of the employee's position that his First Amendment rights in such situations should trump the government's right to maintain an efficient workplace. 

In short, I think Alito will side with the majority for the proposition that even if Ceballos' speech may involve a "matter of public concern" under Connick, under the Pickering balancing of interests, the government's efficiency interests in such cases should prevail.

Alternatively (and to give myself some wiggle room), the Court might find (with Justice Alito signing on to the opinion) that the threshold "matter of public concern" test has not been met because Ceballos is not talking in his role as a citizen, but in his role as an employee of the government. Under such circumstances, the Pickering balance would not even have to be reached.

Either way, look for a non-employee friendly outcome.

PS

http://lawprofessors.typepad.com/laborprof_blog/2006/03/reading_the_tea.html

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