Garcetti v. Ceballos

Here a District Attorney was sanctioned for writing an internal memo about inaccuracies in an affidavit used to obtain a search warrant.

“The question presented by the instant case is whether the First Amendment protects a government employee from discipline based on speech made pursuant to the employee's official duties.” (p.1)

 Test (p.2):

“Pickering and the cases decided in its wake identify two inquiries to guide interpretation of the constitutional protections accorded to public employee speech. The first requires determining whether the employee spoke as a citizen on a matter of public concern. If the answer is no, the employee has no First Amendment cause of action based on his or her employer's reaction to the speech. If the answer is yes, then the possibility of a First Amendment claim arises. The question becomes whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public.  This consideration reflects the importance of the relationship between the speaker's expressions and employment. A government entity has broader discretion to restrict speech when it acts in its role as employer, but the restrictions it imposes must be directed at speech that has some potential to affect the entity's operations....”

Page 3: “So long as employees are speaking as citizens about matters of public concern, they must face only those speech restrictions that are necessary for their employers to operate efficiently and effectively.”

Page 3: “The Court's decisions, then, have sought both to promote the individual and societal interests that are served when employees speak as citizens on matters of public concern and to respect the needs of government employers attempting to perform their important public functions. Underlying our cases has been the premise that while the First Amendment invests public employees with certain rights, it does not empower them to "constitutionalize the employee grievance."”

The problem for Ceballos in this case is his speech was not that of a citizen speaking out about a matter of public concern but a memo to his supervisors concerning a matter that was part of his professional duties. Thus, under the Court’s test he had no First Amendment cause of action based upon his employer’s “reaction to the speech.” P. 2.

Page 3: “The controlling factor in Ceballos' case is that his expressions were made pursuant to his duties as a calendar deputy. That consideration—the fact that Ceballos spoke as a prosecutor fulfilling a responsibility to advise his supervisor about how best to proceed with a pending case—distinguishes Ceballos' case from those in which the First Amendment provides protection against discipline. We hold that when 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.”

Does this make sense? Should Ceballos have written his memo as an open letter to the editor of a local newspaper instead of as an internal memo?

What about a public school teacher in a biology class who, when asked a question by a student about intelligent design, replies that he personally thinks it is a reasonable response to Darwinian evolution? If he is fired or disciplined for this remark, does he have any First Amendment protection?