Garcetti v. Ceballos Isn’t All That Bad

I’m going to jump into my guest-blogging stint here by disagreeing with my esteemed host; surprising though it is, given the makeup of the majority and the dissenters, I think Justice Kennedy’s opinion in Garcetti v. Ceballos gets it right, and the Breyer and Souter dissents get it wrong. Speech made by a government employee as an integral part of the employee’s duties, even on a matter of public concern, shouldn’t be protected against retaliation by the First Amendment.

I’m somewhat disturbed by the company I’m keeping here, so let me lay out my thinking explicitly. The case originating current doctrine on the First Amendment protection of government employees’ speech is Pickering v. Board of Ed., 361 US. 563 (1968); which stands, essentially, for the proposition that the First Amendment protects government employees against retaliation for speech on matters of public concern — in that case, a teacher writing to a newspaper and accusing the Board of Education of wrongdoing. Pickering sets up a balancing test as follows:

At the same time it cannot be gainsaid that the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general. The problem in any case is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.

Under the Pickering balancing test, the State can regulate speech to the extent that its interference with the ‘efficiency of the public services it performs’ outweighs the speaker’s interest in commenting on matters of public concern. This has proved to be a perfectly workable test: it turns on such things as whether the speech is being made in the speakers’ role as a citizen or as an employee, whether it is actually disruptive to the place of employment, and other similar issues. The question posed by this case is: how does that balancing play out when the speech in question is the ‘public services’ being performed? And when it’s put like that, I think the conclusion that the State, as an employer, is entitled to control the manner in which its employees perform their services, and that the First Amendment does not allow state employees to override the employer’s judgment as to how their duties should be performed, is inescapable.

The problem with Garcetti is that the facts are so sympathetic — if they are as stated, Mr. Ceballos was attempting to correct a severe and inexcusable case of wrongdoing by the L.A. Sherriff’s Department, and the District Attorney’s office was absolutely wrong to have retaliated against him for it. But this is persuasive only to the extent that Mr. Ceballos was right — if, instead, the memo he wrote were incompetent nonsense, containing unfounded allegations against the Sherriff’s Department (I don’t mean to imply anything about Mr. Ceballos — I’m thinking of a possible next case), it’s obvious that the District Attorney’s office would have to be able to ‘retaliate’ against him for it. Where someone’s job consists of speech, in the form of memos, briefs, court appearances and such things, the content of that speech determines whether the job is being done well or badly; and the employer has to be able to regulate that content and ‘retaliate’ against the employee when the content is not what the employer wants, or it has no control at all over the job it has hired the employee to do.

Souter and Breyer both nod to this issue. Souter contemplates that speech by government employees in the course of their duties should only be protected only insofar as it meets a high standard of responsibility and consists of “comment on official dishonesty, deliberately unconstitutional action, other serious wrongdoing, or threats to health and safety”; Breyer believes that even that standard would unworkably deprive state employers of control over their employees, and suggests that the First Amendment should protect such speech only where “professional and special constitutional obligations are both present”. Either of those standards, still, either: (1) ends up protecting employees whose duties consist of speech from management action even where they are wrong or incompetent in what they have said, which seems absurd, or (2) ends up extending First Amendment protection to speech only when a court considers the speech correct or valuable, substituting the court’s opinion on how to perform the employee’s duties for the employer’s, which seems, likewise, absurd.

I’d love to be talked out of this position — I’m uncomfortable with the company I’m keeping. Comments, anyone? (Also posted at my home blog, Unfogged.)