The U.S. Supreme Court Announces New Rule for First Amendment Free Speech Cases: Public Employee Whistle-blowers Need Not Apply
On May 30, 2006, the U.S. Supreme Court issued its opinion in Garcetti v. Ceballos, 126 S. Ct. 1951 (2006), a long-awaited decision1 which will impact millions of public employees nationwide. In Ceballos, the Court examined more than three decades of First Amendment precedents and held that the First Amendment does not protect public employees from discipline when they make statements regarding matters of public concern pursuant to their official duties. In so holding, the Court created a firm line between public employees who make statements concerning public matters2 as citizens and those who make statements as part of their jobs. As a result, the latter must seek redress in other forums, such as civil service systems, union grievance provisions, or state and federal whistle-blower laws, when they are disciplined. This article examines the Ceballos test and its likely impact on public employees in Florida.
Richard Ceballos began his employment as a deputy district attorney for the Los Angeles County District Attorney’s Office in 1989.3 During the cases’ relevant period, Ceballos was a calendar deputy, who exercised certain supervisory responsibilities over other prosecuting lawyers. Defense attorneys would commonly request calendar deputies to investigate pending cases.4 In February 2000, a criminal defense attorney asked Ceballos to review the facts in an affidavit submitted by the Los Angeles County Sheriff’s Department to obtain a critical search warrant because he believed they were false. At the time, a motion to traverse (i.e., challenge the warrant) was pending.
After reviewing the details in the affidavit and conducting an on-site investigation of the crime scene, Ceballos concluded that the deputy’s affidavit contained serious misrepresentations.5 Ceballos verbally relayed his conclusions to his two supervisors, and then gave them a disposition memorandum recommending dismissal of the criminal case. After a telephone conversation with the warrant affiant, Ceballos presented his supervisors with a second memorandum that was again critical of the sheriff’s department’s handling of this case.6 Ceballos’ two written statements7 resulted in a heated meeting to discuss the affidavit with the affiant, other employees from the sheriff’s department, and his two supervisors. In the meeting, Ceballos was sharply criticized by the sheriff’s department.
Despite Ceballos’ belief that the criminal case should be dismissed, his supervisors decided to press ahead with the prosecution, pending the disposition of the motion to traverse. At the hearing challenging the validity of the warrant, Ceballos was called by the defense and testified as to his concerns about the affidavit. The Court rejected the challenge to the warrant and upheld the search.
No Good Deed Goes Unpunished
Following the submission of his memoranda criticizing the sheriff’s department’s handling of the criminal case and recommending dismissal of the charges, Ceballos alleged that his employer retaliated against him by 1) reassigning him from his calendar deputy duties to a trial deputy position; 2) transferring him to another courthouse which required a significantly longer commute; and 3) denying him a promotion.8 Initially, Ceballos challenged these employment actions by filing an internal grievance. After losing because of a determination that he had not suffered any retaliation, Ceballos next sued in federal district court alleging under 42 U.S.C. §1983 that his employer violated his rights guaranteed by the First and Fourteenth amendments. The district court granted the employer’s summary judgment, and opined that because Ceballos wrote his memorandum pursuant to his employment duties, he was not protected by the First Amendment.9
On appeal, the Ninth DCA reversed and held that criticizing the sheriff’s department, as set forth in Ceballos’ memoranda, constituted protected speech under the First Amendment.10 To reach its conclusion, the Court relied on its interpretation of the Supreme Court’s decisions in Pickering v. Board of Education, 391 U.S. 563 (1968), Connick v. Myers, 461 U.S. 138 (1983), and Ninth Circuit precedent. The circuit court’s application of Pickering and Connick is worthy of discussion because on appeal, the Supreme Court in Ceballos explained not only why the circuit court’s reading of its precedent was flawed, but it also set forth firm guidelines for all future First Amendment public employee free speech cases.
Pickering and its Progeny
In Pickering, a public school teacher wrote a letter to the local newspaper attacking how the school board handled its bond issue proposals, and its allocation of financial resources between the school’s educational and athletic programs. Additionally, the letter accused the superintendent of schools of attempting to prevent school district teachers from opposing or criticizing the proposed bond issue.11 As a result, the board fired the teacher.
Following the teacher’s dismissal, the board held a hearing where it determined that the publication of the letter, which it found contained false statements, was “detrimental to the efficient operation and administration of the schools of the district.”12 The board and the Illinois courts rejected the teacher’s claim that the writing of the letter was protected free speech.13
On appeal, however, the Supreme Court agreed with the teacher and held that his letter was protected speech. The court opined that absent proof that the teacher knowingly or recklessly made false statements, speaking on issues of public importance may not furnish the basis for his dismissal from public employment.14 However, the Court acknowledged that the government, as an employer, has a different interest in regulating the speech of its employees than the speech of its citizens in general. The Court reasoned that the “problem in any case is to arrive at a balance between the interest of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the [s]tate, as an employer, in promoting the efficiency of the public services it performs through its employees.”15
In applying its new balancing test, the Court determined that the letter, which was critical of the board’s allocation of funds, was not directed toward any person with whom the teacher would normally be in contact in the course of his daily work activities as a teacher. Thus, the Court rejected the board’s contention that the teacher’s working relationship with the board and the superintendent was a close working relationship that required personal loyalty and confidence.16 In tipping the balance in favor of the teacher, the Court opined:
In a case such as the present one, in which the fact of employment is only tangentially and insubstantially involved in the subject matter of the public communication made by a teacher, we conclude that it is necessary to regard the teacher as the member of the general public he seeks to be.17
In a landmark decision applying the Pickering balancing test, the Court in Connick v. Myers, 461 U.S. 138 (1983), amplified the importance of citizen speech for the purpose of First Amendment jurisprudence in the public employment context.18 Justice White began the Court’s opinion by reaffirming Pickering’s holding that “a public employee does not relinquish First Amendment rights to comment on matters of public concern by virtue of government employment.”19 The Court revisited the problem of balancing the government’s interest as an employer and the employee’s interest as a citizen and “return[ed] to this problem [to] consider whether the First and Fourteenth Amendments prevent the discharge of a state employee for the circulating of a questionnaire concerning internal office affairs.”20
The plaintiff in Connick, Sheila Myers, was employed as a prosecutor in New Orleans. After being informed that she was going to be transferred to prosecute cases in a different section of the criminal court, Myers strongly expressed her opposition to the move to several supervisors including her boss, District Attorney Harry Connick. In addition, she prepared and distributed a questionnaire to fellow prosecutors soliciting their views concerning the office transfer policy, office morale, the need for a grievance committee, the level of confidence in supervisors, and whether employees felt pressured to work in political campaigns. Connick terminated Myers for refusing to accept her transfer and informed her that distributing her questionnaire was an act of insubordination.21
Myers filed suit against Connick alleging that she was unlawfully terminated for exercising her constitutionally protected right of free speech. The district court and the Fifth DCA agreed, finding that Myers’ questionnaire, which the facts demonstrated was why she was really fired, involved matters of public concern. Furthermore, the courts found that the state did not clearly demonstrate that the survey “substantially interfered” with the operation of the district attorney’s office.22
On review, the Supreme Court determined that the district and circuit courts had misapplied the balancing test as set forth in Pickering. The Court opined: “The repeated emphasis in Pickering on the right of a public employee ‘as a citizen’ in commenting upon matters of ‘public concern’ was not accidental.”23 The Court explained the importance of citizen speech in their First Amendment analysis: “This language, reiterated in all of Pickering’s progeny, reflects both the historical evolvement of the rights of public employees, and the common-sense realization that government offices could not function if every employment decision became a constitutional matter.”24
Furthermore, the Court in Connick analyzed the content of Myers’ questionnaire.25 With the exception of the inquiry as to whether employees felt pressure to work on political campaigns, the Court dismissed the contents of Myers’ questionnaire “as mere extensions of Myers’ dispute over her transfer to another section of the criminal court.”26 As for the political campaign pressure inquiry, the Court balanced the competing interests of the employer and employee, and held that Connick need not tolerate disruptive action which undermine his authority and destroy personal relationships. Thus, the Court in Connick refused to constitutionalize what was perceived by the Court to be an employee grievance.27 The Court reiterated that this result is necessary for the government, as an employer, to maintain wide discretion and control over the management of its personnel and internal affairs.
Ceballos’ Official Duties Test
To reach its conclusion that Ceballos’ memoranda constituted free speech, the Ninth Circuit also relied on its own precedent that rejected the notion that “a public employee’s speech is deprived of First Amendment protection whenever those views are expressed, to government workers or others, pursuant to an employment responsibility.”28 In reversing the opinion of the Ninth Circuit, the Supreme Court noted the Ninth Circuit failed to consider whether the speech at issue in the memoranda was made in Ceballos’ capacity as a citizen as required by Pickering and Connick. Justice Kennedy delivered the opinion of the Court and framed the issue as follows: “The question presented by the instant case is whether the First Amendment protects a government employee from speech made pursuant to the employee’s official duties.”29 When answering the question, the Court held that the First Amendment protects a public employee’s rights, in certain circumstances, to speak as a citizen addressing matters of public concern.
Relying heavily on Pickering, Connick, and prior precedent, the Court reiterated the two-part inquiry to use when determining whether the Constitution protects a public employee’s speech. “The first requires determining whether the employee spoke as a citizen on a matter of public concern.”30 If the answer is no, then the employee does not have a First Amendment claim based on the employer’s reaction to the speech. If the employee has spoken as a citizen on a matter of public concern, then the possibility of a First Amendment claim arises. “The question then becomes whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public.”31
The Court held that Ceballos’ claim failed under the first inquiry because his expressions were made pursuant to his duties as a supervising prosecutor, not as a citizen. The Court reasoned that a government employer has broad discretion to restrict speech when it acts in its role as an employer, so long as the targeted speech has some potential to affect the employer’s operations.32 For the first time, the Court excluded from constitutional analysis all public employee speech on matters of public concern made pursuant to one’s official duties, essentially modifying the Connick test. Thus, the Court has narrowed the Constitutional protection afforded public employees under its longstanding precedent to now exclude speech in which its content is clearly an interest to the public but is communicated by employees as part of their office job duties. Therefore, the Court’s inquiry turns not only on the subject matter of the speech, but on the official job duties of the speaker. This novel focus, no doubt, will preclude a wide variety of First Amendment claims from public employees.33
Although the Court acknowledged that there will be room for debate concerning what constitutes the scope of an employee’s duties, it determined that the inquiry would be a practical one.34 Moreover, the Court rejected the dissent’s suggestion that employers can now restrict employees’ rights by creating excessively broad job descriptions. In particular, the Court noted “[f]ormal job descriptions often bear little resemblance to the duties an employee actually is expected to perform” and will not be dispositive for First Amendment purposes.35
Ceballos recognized the significance of exposing governmental inefficiency and misconduct. However, if done so in the course of the public employee’s official duties, the employee must turn to a network of legislative enactments such as whistle-blower protection laws and other labor laws to seek redress.
Ceballos’ Impact on Florida Public Employees
For Florida public employees who speak out on issues regarding a matter of public concern within their official duties, their recourse is no longer bringing suit in federal courts. Prior to this decision, public employees who were retaliated against for protected free speech could bring a claim pursuant to 42 U.S.C. §1983 alleging violations of the First and Fourteenth amendments. The employee could seek a wide variety of damages including economic damages, pain and suffering, reinstatement, if applicable, and attorneys’ fees. Moreover, the employee’s claim would be presented to a jury, assuming it survived summary judgment.
After Ceballos, the same public employee will be limited to seeking redress under union contractual provisions, civil service systems, or Florida’s public-sector Whistle-blower’s Act.36 Under each route, the relief available is dramatically different. Remedies available under union contracts and civil service systems do not include claims for noneconomic damages, i.e., pain and suffering, nor do they usually allow an award of attorneys’ fees. Similarly, the Florida public-sector Whistle-blower Act does not allow for compensatory damages or expressly provide for a right to a jury trial.37 Moreover, unlike the filing of a First Amendment claim, there are many conditions which must be met prior to the filing of a whistle-blower claim in court.38 Regardless of the forum, the available relief will be significantly less than that afforded to First Amendment claimants in federal court.
In conclusion, Ceballos’ firm line between public employees who make statements regarding public concerns as citizens and those who make statements pursuant to their official duties will significantly impact the First Amendment protections for Florida public employees. For those public employees who blow the whistle about matters within their official duties, the First Amendment will no longer provide shelter. There will be, however, ample room for litigating exactly what constitutes an employee’s “official duties” given the Supreme Court’s direction to look beyond written job duties.
1 Ceballos was argued twice before the Supreme Court. The first argument ended in a 4-4 tie with Justice O’Connor sitting out. Upon confirmation of Justice Alito, the case was reset for oral argument on March 21, 2006. Justice Kennedy delivered the opinion of the Court, in which Roberts, C.J, and Scalia, Thomas, and Alito, J.J., joined.
2 Connick v. Myers, 461 U.S. 138, 146 (1983) (stating that “[s]peech addresses a matter of public concern when the speech can be ‘fairly considered as relating to any matter of political, social, or other concern to the community.’”).
3 Ceballos, 126 S. Ct. at 1955.
6 Id. at 1956.
7 Id. at 1972 (Souter, J., dissenting). While the Court focused solely on Ceballos’ two memoranda, Justice Souter’s dissent noted that Ceballos was also claiming retaliation for his statements to his supervisors and his testimony in the pending criminal case. Moreover, while his internal grievance was pending, Ceballos spoke at a meeting of the Mexican-American Bar Association about his belief concerning the misconduct of the sheriff’s department in the criminal case. The Court’s opinion chose not to address these other forums of speech.
8 Id. at 1956 (majority).
11 Pickering v Bd. of Educ., 391 U.S. 563, 566 (1968).
12 Id. at 564.
13 Id. at 565.
14 Id. at 575.
15 Id. at 569 (emphasis added).
16 Id. at 570.
17 Id. at 574 (emphasis added).
18 Connick, 461 U.S. 138, 140 (1983).
21 Id. at 141.
22 Id. at 142.
23 Id. at 143.
24 Id. See also Perry v. Sindermann, 408 U.S. 593, 598 (1972); Mt. Healthy City Sch. Bd. of Ed. v. Doyle, 429 U.S. 274, 284 (1977); Givhan v. Western Line Consol. Sch. Dist., 439 U.S. 410, 414 (1979).
25 Connick, 461 U.S. 138 at 147. Whether Myers’ speech addresses a matter of public concern “must be determined by the content, form, and context of a given statement, as revealed by the whole record.”
26 Id. at 148.
28 Garcetti v. Ceballos, 126 S. Ct. 1951, 1956-57 (2006) (citing cases such as Roth v. Veteran’s Admin., 856 F.2d 1401 (9th Cir. 1988). Judge O’Scannlain specially concurred with the panel’s decision because of the Ninth Circuit’s precedent. Judge O’Scannlain, however, emphasized the distinction between when a public employee speaks out during his ordinary job duties and when that employee speaks as a citizen on matters of public concerns. In Judge O’Scannlain’s view, there should be no protection under the First Amendment to afford public employees who speak in the course of carrying out their routine employment obligations. This view was later adopted by the majority of the Court in Ceballos.
29 Id. at 1955.
30 Id. at 1958 (citing Pickering, 391 U.S. 563, 568 (1968).
33 Id. at 1966-67 (Souter, J., dissenting) (stating examples such as a public auditor speaks on his discovery of embezzlement of public funds, when a building inspector makes an obligatory report of an attempt to bribe him or when a law enforcement officer refuses to follow a superior’s order to violate the Constitution).
34 Id. at 1961 (majority).
35 Id. at 1962.
36 Fla. Stat. § 112.1187.
37 Compare Fla. Stat. §448.102 (2) (e).
38Fla. Stat. § 112.3187 (6) – (8).
Leonard J. Dietzen III received his B.A. from the University of Central Florida in 1986 and a J.D. from the Florida State University College of Law, with honors, in 1989. He is a member of the Labor and Employment and Health sections of The Florida Bar. Mr. Dietzen has concentrated his area of practice exclusively to representing management in all areas of labor and civil rights liability matters. A considerable portion of his practice is representation of public employers. He is a partner with the firm of Rumberger, Kirk & Caldwell, P.A.
This column is submitted on behalf of the Labor and Employment Law Section, Cynthia Sass, chair, and Frank E. Brown, editor.