Constitutional Law
Jun. 16, 2006
'Garcetti' Decision Ignores the People's Right to Know
Forum Column - By Erwin Chemerinsky - The Supreme Court's decision in Garcetti v. Ceballos, 126 S.Ct. 1951 (May 30, 2006), denying free speech protection to public employee whistle-blowers, is inconsistent with the most important aspect of the First Amendment: the right of the people to know.
Erwin Chemerinsky
Dean and Jesse H. Choper Distinguished Professor of Law, UC Berkeley School of Law
Erwin's most recent book is "Worse Than Nothing: The Dangerous Fallacy of Originalism." He is also the author of "Closing the Courthouse," (Yale University Press 2017).
By Erwin Chemerinsky
The Supreme Court's decision in Garcetti v. Ceballos, 126 S.Ct. 1951 (May 30, 2006), denying free speech protection to public employee whistle-blowers, is inconsistent with the most important aspect of the First Amendment: the right of the people to know.
In a 5-4 decision, the Supreme Court held that the government does not violate the First Amendment when it punishes an employee for exposing wrongdoing on the job. This is an enormous loss of rights for the millions of people who work for the government. But even worse, it means that the public is much less likely to learn of serious misconduct by their government.
The case involved Richard Ceballos, a supervising district attorney in Los Angeles County, who concluded that a witness in one of his cases, a deputy sheriff, was not telling the truth. He wrote a memo to this effect and felt that he was required by the Constitution to inform the defense of this. As a result of this speech, Ceballos' employers retaliated against him, including transferring him to a less desirable position and denying him a promotion.
The issue before the Supreme Court was whether Ceballos'speech was protected by the First Amendment. Although the Supreme Court long has held that there is constitutional protection for the speech of government employees, it ruled against Ceballos. The court drew a distinction between speech "as a citizen" as opposed to "as a public employee"; only the former is protected by the First Amendment.
The majority opinion by Justice Anthony M. Kennedy said that the "First Amendment protects a public employee's right, in certain circumstances, to speak as a citizen addressing matters of public concern." But Kennedy stated: "[W]hen 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."
The court's opinion rests on a false and unprecedented distinction between individuals speaking as "citizens" and as "government employees." Never before has the Supreme Court held that only speech "as citizens" is safeguarded by the First Amendment. For example, in prior decisions holding that speech by corporations is constitutionally protected, the court emphasized the public's interest in hearing the speech. See, e.g., First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978).
The fact that corporations are not citizens did not matter because it is the right of listeners, according to the Supreme Court, that is paramount. The court in Bellotti explained: "It is the type of speech indispensable to decision-making in a democracy, and this is no less true because the speech comes from a corporation rather than an individual. The inherent worth of the speech in terms of its capacity for informing the public does not depend upon the identity of its source, whether corporation, association, union, or individual."
The same, of course, is true when government employees, especially whistle-blowers, speak out. The public receives valuable information that otherwise might not be available about wrongdoing within the government. Without First Amendment protection, many fewer whistle-blowers are likely to expose government misconduct.
Moreover, an individual who exposes misconduct is acting both as a citizen and as a government employee; it is a false dichotomy to say that a person is in one role or the other. As the dissent pointed out, public employees are still citizens while in office. They are being responsible citizens, as well as acting appropriately in their capacity as public employees.
In this case, Ceballos was revealing a serious problem: misconduct by a deputy sheriff that he believed led to an invalid warrant for a search in violation of the Fourth Amendment. The long history of misconduct by police within Los Angeles shows why it is so important that those like Ceballos be protected when they reveal wrongdoing. Ceballos suffering adverse consequences from speaking out surely means that other government employees, in similar situations, will be chilled from exposing misconduct.
Nor is the Supreme Court's decision restricting protection of government employees needed to safeguard the efficient functioning of the workplace. Almost 40 years ago, the court held that employees could be disciplined for their speech if the government's interests in protecting the efficient operation of the workplace outweighed the speech rights of the government employee. Pickering v. Board of Education, 391 U.S. 563 (1968). As Justice David H. Souter noted in his dissent, "private and public interests in addressing official wrongdoing and threats to health and safety can outweigh the government's stake in the efficient implementation of policy, and when they do public employees who speak on these matters in the course of their duties should be eligible to claim First Amendment protection."
The court's decision in Garcetti v. Ceballos is terribly misguided because it says that the speech of government employees within their jobs is not protected even if the speech involves a matter of public concern and even if the government's interests are outweighed by the public benefits.
Kennedy ended his majority opinion by saying that government employees are protected from retaliation by civil service laws. But nowhere do these laws provide damages for government employees who suffer harms as a result of the violation of their First Amendment rights. Never before has the court said that freedom of speech protections don't apply at all because there might be an administrative remedy.
Government employees, like Ceballos, who expose wrongdoing should be rewarded, not punished. The Constitution and courts should be there to provide protection when government, whether because of bureaucratic defensiveness or malevolence, lashes out against the speaker. Unfortunately, all of us lose when there is less speech and that, undoubtedly, will be the effect of the court's decision.
Erwin Chemerinsky is the Alston & Bird Professor of law and political science at Duke University.
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