U.S. Supreme Court Finds Speech Made Pursuant to Public Employee’s Duties Not Protected by First Amendment

Volume 5, Issue 7
June 13, 2006

The United States Supreme Court recently held in Garcetti v. Ceballos, No. 04-473, 547 U.S. --- (May 30, 2006), that a public employee's memo was not protected speech under the First Amendment because it was written pursuant to the employee's official duties.

Richard Ceballos, a deputy district attorney in the Los Angeles County District Attorney's Office, determined during the course of his duties that an affidavit used to support a criminal search contained serious misrepresentations. He drafted a memo to his supervisors recommending dismissal of the case, but the prosecution proceeded. Ceballos filed a federal lawsuit alleging that subsequent employment actions constituted retaliation in violation of the First Amendment. The Ninth Circuit Court of Appeals held that Ceballos' memo constituted protected speech because it addressed a matter of public concern.

In a 5-4 decision joined by recently appointed Justices Roberts and Alito, the United States Supreme Court rejected the Ninth Circuit Court's analysis. The Court agreed that when a public employee speaks as a citizen on a matter of public concern, he "must face only those speech restrictions that are necessary for [his] employer[] to operate efficiently and effectively." The Court held, however, that Ceballos did not speak as a citizen because his memo was prepared in the official course of his duties.

The Court cautioned that two facts were not dispositive - that Ceballos expressed his views about the affidavit inside his office instead of publicly, and that his speech concerned a subject matter of his employment. The Court explained that "[e]mployees in some cases may receive First Amendment protection for expressions made at work," and that "[t]he First Amendment protects some expression related to the speaker's job." Instead, the controlling fact was that Ceballos' statements were made pursuant to his official duties. Because Ceballos spoke as a prosecutor "fulfilling a responsibility to advise his supervisor about how best to proceed with a pending case," his conduct was not protected by the First Amendment. Recognizing that "[e]mployers have heightened interests in controlling speech made by an employee in his or her professional capacity," the Court determined that the Ninth Circuit Court's approach "would commit state and federal courts to a new permanent, and intrusive role, mandating judicial oversight of communications between and among government and their supervisors in the course of official business."

This decision, which has been sharply criticized, brightens employers' hopes that conservative Justices Roberts and Alito will make a significant difference in the balance of the Court. Many argue that the Court's decision encourages employees to leak information to the pressand that the Court has substantially weakened whistleblower protections. How Ceballos will be applied by the lower courts remains to be seen; for now, however, it is a welcome sign of an attempt to logically and reasonably restrict the scope of at least one area of employee protection.

The full text of the opinion can be found at:

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