Mr. Chairman, distinguished members of the committee:
My name is Roger Pilon. I am vice president for legal affairs atthe Cato Institute and the director of Cato's Center forConstitutional Studies. I thank you, Mr. Chairman, for inviting meto testify today on the Supreme Court's recent decision in the caseof Garcetti v. Ceballos1. Your letter of invitation states that "thepurpose of this hearing is to understand [this decision] regardingFirst Amendment protection for whistleblowers and how-if atall-this decision affects whistleblower protection."
At the suggestion of committee staff, I will direct my remarksto the Ceballos decision rather than to the variousfederal and state whistleblower statutes. In doing so I will do thebest I can to understand the decision, but I should say at theoutset that it is not the easiest decision to understand-in eitherits majority or its three dissenting opinions. Part of the reasonfor that, as the majority says, is that once one gets past a fewbroad principles, the inquiries have "proved difficult" due to "theenormous variety of fact situations."2
Before I turn to the decision, however, it may be useful tostate my general conclusions regarding the issues your letterraises. First, after Ceballos it appears that the FirstAmendment may offer only limited protection to whistleblowers, inpart because there may be only so much a judge can do under theamendment to adjudicate these complex cases. Accordingly, if therelationship between the government employer and employee is to befleshed out further-to protect both the needs of government and therights of employees-it will have to be by statute. That is hardly anovel conclusion, I realize, but I offer it as an antidote to theidea that the disputes at issue lend themselves in any far-reachingway to constitutional as opposed to statutory adjudication.
Second, assuming robust federal and state statutory protectionsfor whistleblowers are in place, this decision, based on the FirstAmendment, should have no effect on those protections. Thus, third,those media reports you reference that appeared immediately afterCeballos came down,3suggesting that the decision eviscerated federal and statewhistleblower protections, were not accurate. Whether thosemeasures are themselves adequate is of course a separate matter,which I understand the next panel will address.
Let me turn now to the decision. I will first summarize thefacts, then look at the Court's opinion, then the dissents, atwhich point I will make a few observations.
Summary of Facts4
Richard Ceballos, a deputy district attorney for the Los AngelesCounty District Attorney's Office, was asked by a defense attorneyto review an affidavit police used for a search warrant. Theattorney claimed the affidavit was inaccurate. After investigatingthe matter, Ceballos agreed. He advised his supervisor, thenprepared a disposition memo recommending dismissal of the case.Nonetheless, the prosecution proceeded. At a hearing to challengethe warrant, the defense called Ceballos to testify. The trialjudge denied the motion to suppress because he found independentgrounds for the warrant. Ceballos claims he was then subjected to aseries of retaliatory employment actions. He initiated anemployment grievance, which was denied. He then filed a section1983 claim in U.S. District Court, alleging violations under theFirst and Fourteenth Amendments.
The District Court granted District Attorney Garcetti's officesummary judgment, ruling that the memo was not protected speechbecause Ceballos wrote it pursuant to his employment duties. TheNinth Circuit reversed, holding that the memo's allegations wereprotected under the First Amendment.
The Majority's Opinion
Writing for himself, the Chief Justice, and Justices Scalia,Thomas, and Alito, Justice Kennedy reversed the Ninth Circuit'sdecision, holding that "when public employees make statementspursuant to their official duties, the employees are not speakingas citizens for First Amendment purposes, and the Constitution doesnot insulate their communications from employerdiscipline."5
The Court's opinion, at its core, is really quite simple.Following Pickering v. Board of Education and casesdecided in its wake, "two inquires" guide interpretation.
The first requires determining whether the employeespoke as a citizen on a matter of public concern. If the answer isno, the employee has no First Amendment cause of action based onhis or her employer's reaction to the speech. If the answer is yes,then the possibility of a First Amendment claim arises. Thequestion becomes whether the relevant government entity had anadequate justification for treating the employee differently fromany other member of the general public.7
And what counts, in this second case, as an adequatejustification for the government's "broader discretion" to restrictor sanction the speech of an employee? The government may do so,the Court says, "when it acts in its role as employer" and thespeech "has some potential to affect the entity's operations."Indeed, "government offices could not function if every employmentdecision became a constitutional matter."8
At the same time, "so long as employees are speaking as citizensabout matters of public concern, they must face only those speechrestrictions that are necessary for their employers to operateefficiently and effectively."9 Thus, the Court's decisions, Justice Kennedyconcludes, "have sought both to promote the individual and societalinterests that are served when employees speak as citizens onmatters of public concern and to respect the needs of governmentemployers attempting to perform their important publicfunctions."10
Applying those principles to the case at hand, the Court foundthat the dispositive factor was not that Ceballos expressed hisviews inside his office rather than publicly, nor that his memoconcerned the subject matter of his employment, but that "hisexpressions were made pursuant to his duties."11 "Ceballos did not act as a citizen" but asa government employee, subject to "employer control over what theemployer itself has commissioned or created."12
Were the Court to adopt the rule proposed by the Ninth Circuit,Justice Kennedy continues, managerial discretion would be replacedby judicial supervision:
When an employee speaks as a citizen addressing amatter of public concern, the First Amendment requires a delicatebalancing of the competing interests surrounding the speech and itsconsequences. When, however, the employee is simply performing hisor her job duties, there is no warrant for a similar degree ofscrutiny. To hold otherwise would be to demand permanent judicialintervention in the conduct of governmental operations to a degreeinconsistent with sound principles of federalism and the separationof powers.13
Rejecting the notion "that the First Amendment shields fromdiscipline the expressions employees make pursuant to theirprofessional duties," the Court concludes by pointing to theimportance of employee speech for good government and to "thepowerful network of legislative enactments ... available to thosewho seek to expose wrongdoing."14
Justice Stevens dissented briefy. Justice Souter dissented moreextensively, joined by Justices Stevens and Ginsburg. And JusticeBreyer dissented.
The main criticism each dissent makes concerns what each sees asthe Court's "categorical" distinction between speaking as a citizenand speaking in the course of one's employment. As Justice Stevenssays: "The proper answer to the questio' 'whether the FirstAmendment protects a government employee from discipline based onspeech made pursuant to the employee's official duties,' is'Sometimes,' not 'Never.'"15 Citing several prior cases, Justice Souterwrites, "the Court realized that a public employee can wear acitizen's hat when speaking on subjects closely tied to theemployee's own job...."16And Justice Breyer argues that the case at hand "asks whether theFirst Amendment protects public employees when they engage inspeech that both (1) involves matters of public concern and (2)takes place in the ordinary course of performing the duties of agovernment job."17 Themajority, he continues, answers "never." "That word, in my view, istoo absolute."18
That criticism is not without merit. In numerous places, themajority's language is categorical, starting with its statement ofits holding: "when public employees make statements pursuant totheir official duties, the employees are not speaking as citizensfor First Amendment purposes, ...."19 Again, in applying its holding to the case athand the majority says that Ceballos "did not speak as a citizen bywriting a memo that addressed the proper disposition of a pendingcriminal case."20 Andagain, the majority concludes that "the First Amendment does notprohibit managerial discipline based on an employee's expressionsmade pursuant to official responsibilities. Because Ceballos' memofalls into this category, his allegation of unconstitutionalretaliation must fail."21
At the same time, the majority seems to leave the door open towhat might be called "mixed" cases-cases in which the employee isspeaking both pursuant to his official responsibilities and as acitizen on a matter of public concern. Thus, returning to the "twoinquiries" with which the Court begins its opinion, if the answeris "yes" as to "whether the employee spoke as a citizen on a matterof public concern," then "the possibility of a First Amendmentclaim arises."22Notwithstanding its categorical language elsewhere in the opinion,the Court here seems to be entertaining a mixed case, for a FirstAmendment claim might arise where the government does not have an"adequate justification" for its disciplinary action.
But having raised the possibility that the Court did entertainmixed cases, let me offer language by the majority that seems to gothe other way:
Employees who make public statements outside the courseof performing their official duties retain some possibility ofFirst Amendment protection because that is the kind of activityengaged in by citizens who do not work for the government. The samegoes for writing a letter to a local newspaper or discussingpolitics with a co-worker. When a public employee speakspursuant to employment responsibilities, however, there is norelevant analogue to speech by citizens who are not governmentemployees23.
Does that mean that speaking "pursuant to employmentresponsibilities" forecloses speaking in the same breath as acitizen? As Justice Souter notes, "would anyone deny that aprosecutor like Richard Ceballos may claim the interest of anycitizen in speaking out against a rogue law enforcement officer,simply because his job requires him to express a judgment about theofficer's performance?"24Perhaps the most that can be said on this fundamental but crucialpoint is that we have not seen the last of this litigation.
Turning to another matter, Justice Souter would adjudicate thisand other such cases as follows under a Pickeringbalancing scheme:
...the extent of the government's legitimate authorityover subjects of speech required by a public job can be recognizedin advance by setting in effect a minimum heft for comments withany claim to outweigh it. Thus, the risks to the government aregreat enough for us to hold from the outset that an employeecommenting on subjects in the course of duties should not prevailon balance unless he speaks on a matter of unusual importance andsatisfies high standards of responsibility in the way he does it.The examples I have already given indicate the eligible subjectmatter, and it is fair to say that only comment on officialdishonesty, deliberately unconstitutional action, other seriouswrongdoing, or threats to health and safety can weigh out in anemployee's favor.25
Although that standard does establish a presumption on the sideof the government employer, Justice Breyer responds that it notonly "fails to give sufficient weight to the serious managerial andadministrative concerns that the majority describes," but it alsoscreens out very little, for there are "far too many issues ofpublic concern, even if defined as 'matters of unusualimportance.'"26
Yet another problem with the Souter standard, however, is thatit is an unbridled invitation to the judiciary to make subjectivepolicy and value judgments. In fact, the standard reads rather likesomething a legislature might use in crafting whistleblowerlegislation. By contrast, the majority's standard-statements made"pursuant to official duties"-seems more objective. Yet JusticeSouter writes that "the majority's position comes with no guaranteeagainst factbound litigation over whether a public employee'sstatements were made 'pursuant to official duties.'"27
What then are we to make of this? In his special concurrencebelow, Judge Q'Scannlain began his opinion by noting that "for muchof this Nation's history, our courts generally accepted then-JudgeHolmes's immoderately narrow view of the First Amendment rights ofpublic employees: '[A constable] may have a constitutional right totalk politics, but he has no constitutional right to be apoliceman.'"28 Theimplication of Holmes's observation is that government, asemployer, may dictate the terms of employment. Justice Kennedystated the modern view at the outset of his opinion: "a Statecannot condition public employment on a basis that infringes theemployee's constitutionally protected interest in freedom ofexpression."29 That seemsright. But if the balance to be struck between free speech andgovernment power is sometimes difficult to discern in the case ofordinary citizens, it is far more so in the case of governmentemployees, who invariably wear two hats. And the speech rights ofCIA agents are surely far different than those of professors atstate universities.
The thrust of the majority in Ceballos seems to be toreduce the role of the courts in drawing these difficult lines. Itis doubtful that the Court drew the line correctly, but neitherdoes it seem that the dissents got it right. When theconstitutional material they have at hand is too sparse, courtstend to make policy judgments, on one hand, or leave things as theyare, on the other hand. This is a place for legislation to fleshout the relationship between the needs of the people and the rightsof government employees, consistent with the idea that citizens donot give up all of their rights when they enter governmentservice.
1 126 S. Ct. 1951(2006).
2 Id. 1958.
3 See, e.g., Fred Barbash,Supreme Court Limits Whistleblower Lawsuits, Wash. Post, May 30,2006 ("[The Ceballos] decision enhances the ability of governmentat all levels to punish employees for speaking out ….");All Things Considered (Nat'l Public Radio broadcast, May30, 2006) (Melissa Block, host: "Today the Supreme Court made itmuch more difficult for public employees to bring retaliationclaims against their bosses."); id. (Nina Totenberg, reporting:"[The Ceballos decision] was a huge loss for the nation's21 million public employees...").
4 Because the case is beforethe Court on a motion for summary judgment, the facts asserted bythe plaintiff are assumed to be true and all inferences are drawnin his favor.
5 Ceballos, supra note 1, at1960.
6 391 U.S. 563 (1968).
7 Ceballos, at 1958.
10 Id. at 1959.
11 Id. at 1959-1960.
12 Id. at 1960.
13 Id. at 1961.
14 Id. at 1962.
16 Id. at 1964.
17 Id. at 1973.
18 Id. at 1974. "Our priorcases do not decide what screening test a judge should apply in thecircumstances before us, namely when the government employee bothspeaks about a matter of public concern and does so in the courseof his ordinary duties as a government employee." Id.
19 Id. at 1960.
21 Id. at 1961.
22 Id. at 1958.
23 Id. at 1961. (emphasisadded)
24 Id. at 1965-1966.
25 Id. at 1967.
26 Id. at 1975.
27 Id. at 1968.
28 Ceballos v. Garcetti,361 F.3d 1168, 1185 (2004) (O'Scannlain, J., concurring) (quotingMcAuliffe v. Mayor of New Bedford, 155 Mass. 216, 220 (Mass.1892)).
29 Ceballos, supranote 1, at 1955.