My name is Roger Pilon. I am vice president for legal affairs at the Cato Institute and the director of Cato’s Center for Constitutional Studies. I thank you, Mr. Chairman, for inviting me to testify today on the Supreme Court’s recent decision in the case of Garcetti v. Ceballos1. Your letter of invitation states that “the purpose of this hearing is to understand [this decision] regarding First Amendment protection for whistleblowers and how‐if at all‐this decision affects whistleblower protection.”
At the suggestion of committee staff, I will direct my remarks to the Ceballos decision rather than to the various federal and state whistleblower statutes. In doing so I will do the best I can to understand the decision, but I should say at the outset that it is not the easiest decision to understand‐in either its majority or its three dissenting opinions. Part of the reason for that, as the majority says, is that once one gets past a few broad principles, the inquiries have “proved difficult” due to “the enormous variety of fact situations.“2
Before I turn to the decision, however, it may be useful to state my general conclusions regarding the issues your letter raises. First, after Ceballos it appears that the First Amendment may offer only limited protection to whistleblowers, in part because there may be only so much a judge can do under the amendment to adjudicate these complex cases. Accordingly, if the relationship between the government employer and employee is to be fleshed out further‐to protect both the needs of government and the rights of employees‐it will have to be by statute. That is hardly a novel conclusion, I realize, but I offer it as an antidote to the idea that the disputes at issue lend themselves in any far‐reaching way to constitutional as opposed to statutory adjudication.
Second, assuming robust federal and state statutory protections for whistleblowers are in place, this decision, based on the First Amendment, should have no effect on those protections. Thus, third, those media reports you reference that appeared immediately after Ceballos came down,3 suggesting that the decision eviscerated federal and state whistleblower protections, were not accurate. Whether those measures 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 the facts, then look at the Court’s opinion, then the dissents, at which point I will make a few observations.
Summary of Facts4
Richard Ceballos, a deputy district attorney for the Los Angeles County District Attorney’s Office, was asked by a defense attorney to review an affidavit police used for a search warrant. The attorney claimed the affidavit was inaccurate. After investigating the matter, Ceballos agreed. He advised his supervisor, then prepared a disposition memo recommending dismissal of the case. Nonetheless, the prosecution proceeded. At a hearing to challenge the warrant, the defense called Ceballos to testify. The trial judge denied the motion to suppress because he found independent grounds for the warrant. Ceballos claims he was then subjected to a series of retaliatory employment actions. He initiated an employment grievance, which was denied. He then filed a section 1983 claim in U.S. District Court, alleging violations under the First and Fourteenth Amendments.
The District Court granted District Attorney Garcetti’s office summary judgment, ruling that the memo was not protected speech because Ceballos wrote it pursuant to his employment duties. The Ninth Circuit reversed, holding that the memo’s allegations were protected 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’s decision, holding 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.“5
The Court’s opinion, at its core, is really quite simple. Following Pickering v. Board of Education and cases decided in its wake, “two inquires” guide interpretation.