Tuesday, May 30, 2006

Garcetti v. Ceballos Decided; Public Employee Free Speech Takes a Hit

4united_states_supreme_court_112904_2Further Update:  More interesting ruminations about the Ceballos decision by Kermit Roosevelt on Balkinization.

Update:  Rather than reinvent the wheel on this one, here is some insightful commentary on Garcetti v. Ceballos by Jack Balkin over at Balkinization.

The United States Supreme Court today decided the public employee free speech case of Garcetti v. Ceballos, 547 U.S. x (U.S. May 30, 2006).  You might recall that this case was scheduled for reargument in March after Justice Alito replaced Justice O'Connor on the court.

And apparently that substitution has made all the difference in this very cloe 5-4 decision, in which the court held that public employees are not speaking as citizens for First Amendment purposes when they engage in speech tied to their official duties.  Justice Kennedy wrote the majority opinion, while Justices Stevens, Souter and Breyer all writing dissents.

Here is some early analysis from the AP:

The Supreme Court on Tuesday made it harder for government employees to file lawsuits claiming they were retaliated against for going public with allegations of official misconduct. 

By a 5-4 vote, justices said the nation's 20 million public employees do not have carte blanche free speech rights to disclose government's inner-workings. New Justice Samuel Alito cast the tie-breaking vote.

Justice Anthony M. Kennedy, writing for the court's majority, said the First Amendment does not protect "every statement a public employee makes in the course of doing his or her job."

And Marty Lederman weighs in from the SCOTUSblog:

Today, the Court took that very signifiant step, holding that "when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline." This apparently means that employees may be disciplined for their official capacity speech, without any First Amendment scrutiny, and without regard to whether it touches on matters of "public concern" -- a very significant doctrinal development.

Stay tuned for more analysis on this very important case for the First Amendment speech rights of public employees.



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This ruling protects bureaucratic management from being held accountable for malfeasance. Protection of the organization should be subordinated to the interests of the society which it was created to serve. To erode an individual's liberty in order to shield a bureaucracy is ludicrous.

If the intent of the ruling is to insulate public entities from valid criticism or from employees' genuine concern for the public interest, the court is overstepping its Constitutional authority. If this is not the intent, it is, in effect, the result.

The public employee, inspite of his/her work status, remains a citizen and, thus, entitled to Constitutional protections unless it can be demonstrated that this status demands a specific exception due to an overwhelming concern for the benefit/protection of the society.

Both the protection of individual liberty and the maintenance of society's general well-being necessitate relegating the public agency's desire for repressing invidual employees'criticism to a secondary position.

Posted by: Leigh Brumberg | May 31, 2006 11:57:25 PM

How do I pursue a sex/age discrimination complaint when I may be disciplined for discussing incidents in my communications to top managers?

I would sympathize with the writer who'd like to see incompetent, unaccountable government employees removed from their jobs -- the problem is that most of those incompetent and unaccountable employees are the very ones whom subordinates are blowing the whistle on.

This ruling will protect many managers who are involved in waste, fraud and abuse, keeping them in their "tenured" jobs, while suppressing public employees who are conscientious and honest in attempting to protect taxpayer interests.

Posted by: lisa | Jun 1, 2006 9:18:59 AM

THIS WAS DONE SO THAT THE PEOPLE IN POWER CAN DO WHATEVER THE F*** THEY WANT!!! SEXUAL HARASSMENT, MISUSE OF FUNDS, LYING, CHEATING, FRAUD, etc. We can all thank Mr. Bush and his sidekicks for this one. Of course they want to be able to keep doing the above and now they can. SO IF YOU ARE A PUBLIC EMPLOYEE, GET OUT NOW! Or learn how to keep your mouth shut! I am a public school teacher who stood up against a principal who was covering up sexual harassement of students and I blew the whistle on him and I got kicked out of my school. I was not the only one kicked out for raising this concern and abuse of power. We filed a class action lawsuit against the school district. We ended up settling. All I can think about is what will happen now when adults in positions of power do things like this, noone will try to stop them because they have NO PROTECTION of their first amendment rights. THIS COUNTRY IS BEING RUN INTO THE GUTTER! A free country? I think not. Interesting that this ruling has not been highlighted in the media. A fleecing of America?

Posted by: Jennifer | Jun 15, 2006 5:13:24 PM

My friend is currently battling a court case similiar to Garcetti. We are trying to accumulate reports/info pertaining to his defense. He is a good cop that was put on suspension, w/o pay, for pointing out corrupt cops. There has to be justice. Any new cases, and or comments are welcomed.

Posted by: shannon | Jun 24, 2008 7:09:56 AM

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