Advancing The Right To Voice Dissent Within the Government:
The Supreme Court's Opportunity To Reinvigorate the First Amendment for Public Employees

By JULIE HILDEN


julhil@aol.com
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Tuesday, Oct. 25, 2005

This month, the U.S. Supreme Court heard oral argument in the case of Garcetti v. Ceballos. It is an action under a federal statute that allows suits for damages when the government violates constitutional rights. Here, it is the plaintiff's First Amendment rights that, he claims, were violated.

What makes the case interesting is that it's an intra-governmental fight: The plaintiff, Richard Ceballos, was a government employee.

Specifically, Ceballos was a Deputy D.A., at the Los Angeles District Attorney's Office. And it is his own supervisors who, he says, violated his constitutional rights.

Ceballos's case should proceed; he has alleged a real and serious First Amendment violation.

The Allegations In the Ceballos Case

According to his complaint (as summarized in the appeals court opinion), upon a defense attorney's request, Ceballos investigated whether a deputy sheriff had lied in a search warrant affidavit. After investigating, Ceballos concluded that, at a minimum, the affidavit contained gross misrepresentations as to the facts.

Ceballos therefore recommended to his supervisors, in a memorandum, that the case be dismissed immediately. But they said they would wait for the outcome of a hearing regarding a motion to suppress evidence gained as a result of the search warrant.

Under the U.S. Supreme Court's decision in Brady v. Maryland, which requires the prosecution to turn over exculpatory evidence to the defense, Ceballos felt obliged to turn his memorandum over to the defense. But his supervisors, he alleges, compelled him to turn over, instead, an edited form of the memorandum, and to limit his in-court testimony so that it did not reflect the full scope of his investigation.

At the hearing, his supervisors succeeded in limiting Ceballos's testimony; they raised objections, and the court upheld them. As a result, Ceballos felt he did not have the chance to voice all the issues his investigation had unearthed with respect to the search warrant affidavit.

After the hearing, Ceballos says, he was demoted, barred from working on major cases such as murder cases, and otherwise mistreated in retaliation for his actions in trying to provide the defense with his unedited memorandum.

Pickering and Connick: The Key Supreme Court Precedents

The Court, as usual, is not writing on a clean state; two of its own precedents have established the ground rules when it comes to First Amendment claims involving the speech of government employees.

The first is the 1968 decision in Pickering v. Board of Education, authored by Justice Thurgood Marshall. It involved a teacher who sent a letter to the local paper that was critical of the way the Board of Education handled proposals to raise revenue for the schools.

The teacher was rewarded for his candor by being fired; the Board argued, in essence, that he'd been disloyal by sending his letter.

Justice Marshall was having none of that. Absent proof that the teacher had actually defamed the Board, Marshall opined, on behalf of the Court, that "a teacher's exercise of his right to speak on issues of public importance may not furnish the basis for his dismissal from public employment."

So far, so good - in my opinion. The Court had roundly rejected the claim that teachers leave their First Amendment rights at the schoolhouse door. It seems to me especially appalling that teachers - who ought to be urging students to be good citizens by getting involved in community matters - could be subject to the threat of firing for their own involvement in just such matters.

But then the issue of public employee speech was made significantly more complicated in the 1983 case of Connick v. Myers. This time, the Court approved the firing of a public employee who spoke out. It was a 5-4 decision. (The majority included then-Justices Rehnquist and O'Connor. The dissenters included not only then-Justice Marshall, but then-and-current Justice John Paul Stevens.)

Connick, interestingly, was not a whistleblower case, in the sense that the fired or demoted employee was complaining to the outside world. Instead, an Assistant District Attorney angry about supervisors' office policies took it upon herself to circulate a questionnaire among her colleagues about the policies.

The questionnaire included a question about how much confidence employees had in their supervisors' policies - suggesting, it seemed, an implicit critique of the supervisors. It also included a question about whether employees felt pressure to work on political campaigns - suggesting a more public-interested reason for concern.

The Court, in an opinion by Justice White, reasoned that the questionnaire concerned "internal office affairs," and that such issues were not "a matter of public concern." And it held that "when a public employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest, absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee's behavior."

The Connick case left open an obvious question: When, exactly, does a government employee speak "as a citizen upon matters of public concern," and when does she speak "as an employee upon matters only of personal interest"? (Emphasis added.) And what if the two types of speech are intermingled in a given case?

The "only" here seems, in theory, quite significant: It indicates that speech that is a mixture of private and public concerns ought to be treated much the same as exclusively public-interested speech.

But then why didn't the "only" mean a victory for the employee in Connick - who had, after all, included the public-interested "pressure to campaign" question in her questionnaire?

Clearly, in some cases, if speech is mostly related to private interoffice concerns, the employee will not be protected even if it does have some public interest component.

But how much public interest has to be in the mix? That question, I think, is why courts have struggled to interpret the precedent set by Pickering and Connick - and perhaps also why the Court decided to hear Ceballos's case.

The Ceballos Case: Job-Related Speech, But in the Public Interest, Too

Based on the allegations of Ceballos's complaint, it appears that he was acting from his conscience and what he viewed as his professional responsibility, not due to private gripes. To me, this is a strong sign that the "public interest" aspect of his speech was the dominant one, and that his speech ought to enjoy full First Amendment protection.

By contrast, the employee in Connick was complaining about - and circulating a questionnaire about - office policies that applied to her, and therefore bothered her.

But Ceballos was concerned about the way a sheriff's deputy's misrepresentations in a search warrant affidavit would affect the office's integrity and, presumably, the defendant in the case - not the way they would affect him personally.

Ceballos, according to his complaint, also was concerned about fully honoring the Supreme Court's dictate, in Brady, that a defendant is entitled to receive exculpatory evidence -- evidence that raises doubts about guilt -- in the prosecution's possession.

And certainly, lies included in an affidavit used to obtain a search warrant do not inspire confidence in the impartial investigation of the case. Even if the evidence discovered in the search is admitted, the defendant ought to have the right to know about the lies to establish that those who were investigating his case were willing to lie to send him to jail: If they lied in a sworn affidavit, why wouldn't they also lie in sworn testimony at trial?

In my experience, it's difficult to get some prosecutor's offices to comply with Brady - because they tend to have an unfairly narrow concept of what is exculpatory. And trying to force unwilling prosecutors to comply is a guessing game for the defense attorney: If you don't know what, in particular, they have withheld from you, how can you explain to the court why that evidence would be exculpatory?

The reality is that the presence of conscientious prosecutors like Ceballos, who do not take narrow views of what counts as exculpatory, is vital to ensuring that defendants receive a fair trial, and that innocent defendants are not convicted.

In sum, if the facts are as the complaint portrays them to be, then Ceballos should have been praised, not blamed and punished, for his insistence on disclosing the full circumstances relating to what he believed were misrepresentations on the search warrant affidavit.

His speaking out was in the public interest. It should be held to be fully and clearly protected by the First Amendment.

Two Ways the Court Could Go - and The Possible Consequences

Ideally, this case could give the Supreme Court a great podium to establish that a citizen retains his or her First Amendment rights, despite government employment, and even if the speech at issue was job-related (which it was, here, for compliance with Brady duties is part of a prosecutor's job responsibilities).

This should be the rule, in my view, because often, when an employee wants to speak out, it's because job-related speech is speech in the public's interest too. Imagine if an employee at a flight school, pre-9/11, had been threatened with firing if he disclosed to the media information about certain of his clients' personalized training routines. One could easily see a blanket company policy that said: Do not reveal client information or you'll get fired. The information would be job-related: The substance of the individualized curriculum the employee taught to particular clients. But it would be also intensely in the public interest - if it suggested, for instance, that some clients wanted to learn navigation, but not to take off or land.

(As readers may recall, Zacarias Moussaoui, one would-be 9/11 hijacker, had asked about taking courses in navigation - in his words, "steering" a commercial jetliner -- but not in takeoff or landing, which would have been useful to someone who intended to crash an airplane instead of landing it on a runway.)

Conversely, though, the Ceballos case may divide the Court as sharply as Connick did, and a slim majority may opt to diminish employees' First Amendments right when it comes to job-related speech.

If so, an ironic result would follow: Government whistleblowers who speak out might be protected by statutes, but not by the First Amendment. In this context, any gaps in the coverage of current whistleblower-protection statutes would be all the more serious.

Truth -- in circumstances like Ceballos's or the hypothetical flight instructor's -- is more important than loyalty to higher-ups. Government offices need not be in monolithic consensus to function well. Indeed, they will function more with more transparency and legitimacy if employees can speak out, within and outside the office, on matters of public interest. "Yes" men and women just echo decisions - they don't challenge and thus improve them.

Why is our society so afraid of dissent and disagreement? That's what democracy is all about: Dissent and disagreement, resolved peacefully through the fair administration of the law.


Julie Hilden, a FindLaw columnist, graduated from Yale Law School. She practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99. Hilden's first novel, 3, was published recently. In reviewing 3, Kirkus Reviews praised Hilden's "rather uncanny abilities," and Counterpunch called it "a must read.... a work of art." Hilden's website, www.juliehilden.com, includes MP3 and text downloads of the novel's first chapter.

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