United States: Supreme Court Rules That Public Employee´s Performance of Job Duties Alone Is Not Protected Speech Under the First Amendment

In today’s 5 to 4 opinion in Garcetti v. Ceballos (No. 04-473) authored by Justice Kennedy and joined by Justices Roberts, Scalia, Thomas, and Alito, the Supreme Court held that government employees who "make statements pursuant to their official duties" do not engage in speech protected under the First Amendment. The ruling involves a government lawyer’s claim for protection from retaliation under the First Amendment, but also has significant implications for the private sector, which is subject to many state and federal statutes that protect private sector employees from retaliation. The opinion probably will be influential to state and federal courts faced with the question whether private sector employees who are merely performing their daily jobs may be viewed as engaging in legally protected activities under state and federal anti-discrimination and whistleblower protection statutes.

Richard Ceballos is an attorney currently employed as a prosecutor by the Los Angeles County District Attorney’s Office. In 2000, the Los Angeles Police Department was being investigated for allegedly false police testimony that led to several convictions of innocent persons. That year, Ceballos received an allegation from a criminal defense attorney that false statements had been made under oath by the arresting deputies in an affidavit supporting a search warrant. Concerned about a potential miscarriage of justice, Ceballos investigated and determined that the warrant was inaccurate. Ceballos wrote a memorandum to his supervisor recommending that that the case not be prosecuted. Ceballos’s supervisors decided to go forward with the prosecution, and to allow the court to determine whether the search warrant was valid. After receiving a subpoena from the defense attorney who had alerted Ceballos to the potentially false affidavit, Ceballos testified at the hearing on the motion to suppress the search warrant. The court determined that the search warrant was valid.

In his lawsuit, Ceballos alleged that over the following six months the district attorney’s office retaliated against him for exercising his First Amendment rights to voice his concerns about the potential police misconduct in the criminal case, to write memoranda, and to testify at the suppression hearing. The alleged retaliation included a demotion; reassignment of his murder cases to a more junior colleague with no murder trial experience, with a negative effect on his ability to be promoted; a transfer to a more distant courthouse that required a lengthy commute; and denial of a promotion.

The district court granted summary judgment in favor of the District Attorney’s office on the ground that Ceballos’s speech regarding potential police misconduct was not protected by the First Amendment because he wrote the memorandum in fulfillment of his regular prosecutorial duties, which included scrutinizing search warrants or other testimony for potential falsehoods.

The Court of Appeals for the Ninth Circuit reversed, holding that Ceballos’s speech was protected by the First Amendment because the speech addressed the important public concern of administration of justice at a time when the Los Angeles Police Department was under investigation, and his interest in the speech outweighed the public employer’s interest in avoiding inefficiency and disruption.

Prior to the Supreme Court’s ruling, the Courts of Appeals had reached widely diverging conclusions about whether the First Amendment affords protection from retaliation to public employees who raise matters of public concern as part of the fulfillment of regular job-related responsibilities. At the most protective end of the spectrum, in its decision in this case the Ninth Circuit reasoned that stripping a public employee of First Amendment protection for speech regarding a public concern made while carrying out job duties would undermine the integrity of governmental operations, because public employees’ access to information and experience uniquely qualifies them to contribute to debates on matters of public concern. Ceballos v. Garcetti, 361 F.3d 1168 (9th Cir. 2004). The Ninth Circuit also reasoned that it would be illogical to protect whistleblowers who report matters of public concern to external sources but not those who report the same information internally. The Ninth Circuit determined that all speech made by public employees is protected by the First Amendment if (i) the speech addresses a matter of public concern, and (ii) the public employee’s interest in the speech outweighs the government’s interests in promoting workplace efficiency and avoiding workplace disruption.

On the least protective end of the spectrum is the Fourth Circuit Court of Appeals. In Urofksy v. Gilmore, 216 F.3d 401 (4th Cir. 2000), the Fourth Circuit stated that the above two-part test is used to determine whether a public employee’s speech is protected by the First Amendment. However, before using this two-part test, the court must first inquire into whether the public employee’s speech constitutes that of a private citizen speaking on a matter of public concern, or that of an employee paid by the government to voice concerns. According to the Fourth Circuit, whether the public employee’s speech is made primarily in the employee’s role as a citizen, or primarily in the employee’s role as an employee, determines whether the speech is entitled to First Amendment protection.

Justice Kennedy’s opinion rejected the Ninth Circuit’s position and adopted the Fourth Circuit’s view. While acknowledging "the First Amendment protects a public employee’s right, in certain circumstances, to speak as a citizen addressing matters of public concern. . . ," the opinion held "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 discipline."

Justice Souter’s dissent was joined by Justices Stevens and Ginsburg. Justice Souter would have followed the Ninth Circuit’s approach, and stated that he believed that Ceballos’ speech was protected because it related to a matter of public concern. Justice Souter argued that the majority’s formulation of speech made "pursuant to official duties" was unworkable, and illustrated the point with this rhetorical question: "Are government scientists’ complaints to their supervisors about a colleague’s improper use of radioactive materials made ‘pursuant’ to duties?" Justice Souter expressed particular concern as to whether the ruling would adversely affect the free speech rights of professors at publicly-funded universities. Justice Kennedy downplayed that concern in the majority opinion.

Justice Breyer issued a separate dissent, stating that the majority’s opinion protected too little speech, and that Justice Souter’s dissent would protect too much speech. According to Justice Breyer, public employee speech should be protected when (1) it involves a matter of public concern; (2) takes place in the course of ordinary job-related duties; and (3) presents an augmented need for constitutional protection and diminished risk of undue judicial interference with governmental management of the public’s affairs. Justice Breyer would have found all three elements present in this case because Ceballos’ speech as a lawyer was constitutionally required as part of a prosecutor’s duty to provide exculpatory information to the defense.

Managers in both the government and private sectors often are perplexed by the tension between managing poorly performing employees through discipline or termination, and not retaliating against employees who engage in protected speech or whistleblowing. The chilling effect that fear of retaliation claims may have on personnel management is magnified for those categories of employees whose jobs routinely require them to voice concerns about issues of public importance.

Many such categories of jobs exist in government or private sector employment. As illustrated by Garcetti v. Ceballos, almost any decision made by a prosecuting attorney naturally affects the administration of justice. In the life sciences, aerospace or nuclear energy industries, to name only a few, there are certain categories of quality control or safety employees whose jobs require them to raise concerns about the health and safety of co-workers or the public. In the financial services and information technology sectors, there are data security professionals who are required to question the compliance of their employers with laws protecting personally identifiable information. In the Sarbanes-Oxley era, accounting or internal audit employees of publicly-traded companies are paid to raise questions about appropriate accounting practices.

The legal question is whether such categories of employees should be protected for raising issues of public importance, even though their job descriptions require them to do so. If so, then entire categories of government and private sector employees might enjoy legal protection for most of their job activities, and therefore could easily allege claims of retaliation for engaging in protected conduct. As a result, effective personnel management of entire categories of employees might be chilled. In contrast, most employees in job categories that do not touch upon important public concerns must prove that they engaged in some form of legally protected behavior before they have legal remedies for retaliation. Merely performing their daily jobs typically is not sufficient to prove that most employees engaged in legally protected behavior.

The Supreme Court’s opinion provides guidance to employers and employees in the government and private sectors as to what activities are sufficient to rise to the level of legally protected behavior in job categories that regularly touch upon matters of public importance. The opinion should enable employers and employees to better draw the lines as to what types of employees’ activities are or are not legally protected, and as to when personnel decisions may or may not be deemed retaliation.

Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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