Thursday, January 31, 2008

Garcetti, Free Speech, and Managerial Prerogative

Rosenthal_l Lawrence Rosenthal (Chapman) has just posted on SSRN his article The Emerging First Amendment Law of Managerial Prerogative.   Here's an excerpt from the abstract:

In Garcetti v. Ceballos, the Supreme Court, by the narrowest of margins, held that allegations of police perjury made in memoranda to his superiors by Richard Ceballos, a supervisory prosecutor in the Los Angeles County District Attorney's office, were unprotected by the First Amendment because "his expressions were made pursuant to his duties..."  The academic reaction to this holding has been harshly negative; scholars argue that the holding will prevent the public from learning of governmental misconduct that is known only to those working within the bowels of the government itself.

This article rejects the scholarly consensus on Garcetti. The critics' claim that Garcetti undervalues the role of whistleblowers in enhancing the quality of public discussion and debate is misconceived, I will argue, because Garcetti is not properly understood as a whistleblower case. Ceballos did not take his case against the district attorney's office to the public; therefore his speech could not have advanced the public's understanding and evaluation of the district attorney's performance.  Moreover, although the Court's opinion is admittedly undertheorized, its holding is consistent with fundamental principles of First Amendment law.  Rather than stifling public discussion and debate about public institutions, Garcetti rests on an understanding of the First Amendment's commitment to free speech as a means of achieving political accountability - an understanding with powerful roots in First Amendment jurisprudence.  The Court's opinion contains a sketch - concededly partial and somewhat obscure - of managerial control over employee speech as essential if management is to be held politically accountable for the performance of public institutions.  This article endeavors to fill out the sketch.

I had the privilege of seeing Lawrence present this article last fall at the Colloquium on Current Scholarship in Labor & Employment Law.  As he notes, almost all scholarly discussion of Garcetti has been critical (see, for example, Paul's article The Solomon Amendment, Expressive Associations, and Public Employment; for a complete and very long list of critical citations, see footnote 3 of Lawrence's article), so the stance here is a bold one. 


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Interesting post. I'm also a big fan of your blog.

But I disagree with Mr. Rosnethal's stance. How is Mr. Ceballos's memo to his superiors at a government agency not whistleblowing? I think he did the responsible thing by raising his concerns first with his superiors before going to other government agencies or the press. Yet he was clearly trying to draw attention to illegal activity. What message does Garcetti v Ceballos send to other potential whistleblowers working in government? Maybe I'm missing something, it wouldn't be the first time.

Posted by: Eugene Lee | Jan 31, 2008 10:47:13 AM

As I argue in the paper, if whistleblowing is defined as disclosing previously suppressed evidence of government misconduct, Ceballos was not a whistleblower. He learned of the supposed evidence of police perjury from the defense lawyer in a case about to go to hearing. Having been persuaded that the officers had lied to obtain a search warrant, and apparently unwiling to trust the trial judge to make what he regarded as the correct ruling, Ceballos argued that the district attorney should abandon the prosecution. It was this internal "speech" for which Ceballos later claimed First Amendment protection. After Ceballos was overruled, all of the supposed evidence of police perjury (including Ceballos's own testimony) was presented at the hearing, and the trial judge ruled for the prosecution, concluding that the officers had not procured the warrant by perjury. Under the defintion advanced above, whatever else one wants to say about Ceballos's conduct, it did not involve whistleblowing. If, on the other hand, whistleblowing is defined as officious intermeddling by one who erroneously believes that he has come upon evidence of police misconduct that is already known to outsiders, then Ceballos surely qualifies as a whistleblower.

Larry Rosenthal
Chapman University School of Law

Posted by: Larry Rosenthal | Jan 31, 2008 5:17:45 PM

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