Learn more about our policy experts.

Media Contacts

Angela Bradbery, Director of Communications
w. (202) 588-7741
c. (202) 503-6768
abradbery@citizen.org, Twitter

Barbara Holzer, Broadcast Manager
w. (202) 588-7716
bholzer@citizen.org

Karilyn Gower, Press Officer
w. (202) 588-7779
kgower@citizen.org

Ben Somberg, Press Officer (regulatory matters)
w. (202) 588-7742
bsomberg@citizen.org, Twitter

Other Important Links

Press Release Database
Citizen Vox blog
Texas Vox blog
Consumer Law and Policy blog
Energy Vox blog
Eyes on Trade blog
Facebook/publiccitizen

Follow us on Twitter

 

July 25, 2005

Supreme Court Case Involving Free Speech Could Have Major Implications for Whistleblowers and the Public

A Los Angeles Prosecutor’s Job-Related Speech Reporting Police Misconduct Faces Exclusion from First Amendment Protection; Public Citizen Lawyer to Argue Case in October

WASHINGTON, D.C. – In a case with major First Amendment implications for public employees who blow the whistle on government wrongdoing, Public Citizen, on behalf of a Los Angeles prosecutor, is urging the U.S. Supreme Court to rule that the First Amendment protects him from retaliation by his employer for reporting suspected police misconduct.

Public Citizen on Friday filed a brief in the case, Garcetti v. Ceballos, on behalf of prosecutor Richard Ceballos, arguing that speech by a public employee that occurs on the job cannot, for that reason alone, be excluded from First Amendment protections. The case will be argued in the U.S. Supreme Court in October by Bonnie I. Robin-Vergeer, an attorney with Public Citizen.

As the brief notes, the nation’s 21 million federal, state and local government employees are best situated to uncover and communicate information of critical importance both to the public and the government ─ about abuse of power, violations of law, gross mismanagement, breaches of national security or dangers to public health and safety. If the Supreme Court rules against Ceballos, public employees across the country would be deterred from bringing government misconduct to light, thereby hindering the public’s ability to hold government officials accountable, Robin-Vergeer argues.

“If the Court rules against Mr. Ceballos and holds that public employees have no constitutional protection for speech if it is communicated as part of their jobs, public employees would be unprotected for whistleblower speech,” Robin-Vergeer said. “For instance, if a public employee reported abuse of power, fraud, a security threat or waste of taxpayer funds in the course of doing her job, she would have no First Amendment protection from retaliation by her employer for delivering what is a valuable, but perhaps unpopular, message.”

The case began in February 2000, when Ceballos, a prosecutor in the Los Angeles District Attorney’s Office, was asked by the defense attorney in a case under Ceballos’s supervision to investigate whether arresting deputies had engaged in misconduct. Ceballos investigated and concluded that one of the deputies had lied in an affidavit to obtain a search warrant that led to an arrest.

Ceballos prepared a memo to his supervisor alleging that the search warrant affidavit had relied on inaccurate, misleading and possibly outright false information and accusing the deputy who submitted it of perjury. He urged that the criminal cases against the defendants be dismissed. Although initially receptive to Ceballos’s concerns, his superiors turned against him after meeting with representatives from the Sheriff’s Department, who demanded that Ceballos be removed from the case. 

The defense in the criminal case subpoenaed Ceballos to testify at a hearing involving a challenge to the search warrant. Ceballos told one of his supervisors that his March 2 memo and a related memo contained material that should be turned over to the defense, but his supervisor initially resisted. After convincing her, Ceballos provided redacted memos to the defense. Shortly afterward, the supervisor made a veiled threat of reprisal if Ceballos were to testify candidly at the hearing. The supervisor successfully objected in court to much of Ceballos’ testimony, thereby limiting its scope, and the court denied the search warrant challenge.

Over the next six months, Ceballos was demoted and one of his murder cases was taken away and given to a junior prosecutor. He was denied a promotion and transferred to a location that lengthened his commute. In October 2000, Ceballos sued his supervisors, the District Attorney and Los Angeles County, claiming that they had retaliated against him for exercising his First Amendment rights.

A district judge ruled against Ceballos, concluding that his speech was not protected by the First Amendment because he wrote his memo “as part of his job.” Ceballos appealed to the U.S. Court of Appeals for the 9th Circuit, which reversed the lower court ruling and held that “the law was clearly established that Ceballos’s speech addressed a matter of public concern and that his interest in the speech outweighed the public employer’s interest in avoiding efficiency and disruption.” The court rejected the defendants’ contention that a public employee’s speech is unprotected when his views are expressed as part of his employment duties. Earlier this year, the U.S. Supreme Court agreed to hear the dispute.

Nearly 40 years ago, the Supreme Court recognized in Pickering v. Board of Education that public employees enjoy a First Amendment right to express themselves on matters of public concern without fear of retaliation. Since then, the Court has never held that speech addressing matters of public importance expressed by public employees in the course of doing their jobs was unprotected. Virtually all the circuit courts in the country have held that on-the-job “whistleblower speech” merits special protection.

Los Angeles County, Ceballos’s supervisors, and the United States Department of Justice as a friend of the court, argue that public employees enjoy the First Amendment right to speak on matters of public concern only if they speak as “citizens” outside the scope of their employment duties, not if they speak as “employees” doing their jobs, and urge the Supreme Court to rule that on-the-job speech by government employees falls outside the First Amendment. Not only is this drastic curtailment of longstanding constitutional protection contrary to Supreme Court precedents, Ceballos contends, but it would cause many whistleblowers to remain silent or air problems in the media instead of pursuing internal channels ─ leading to far greater workplace disruption.

Numerous groups representing diverse perspectives have filed or joined friend-of-the-court briefs in support of Ceballos, including the Association of Deputy District Attorneys, the California Prosecutors Association, the Government Accountability Project, the National Employment Lawyers Association, the Association of Trial Lawyers of America, the National Association of Criminal Defense Lawyers, the American Civil Liberties Union, the AFL-CIO, the National Treasury Employees Union, the American Association of University Professors, the National Education Association and the Thomas Jefferson Center for the Protection of Free Expression.

###

 

Copyright © 2014 Public Citizen. Some rights reserved. Non-commercial use of text and images in which Public Citizen holds the copyright is permitted, with attribution, under the terms and conditions of a Creative Commons License. This Web site is shared by Public Citizen Inc. and Public Citizen Foundation. Learn More about the distinction between these two components of Public Citizen.


Public Citizen, Inc. and Public Citizen Foundation

 

Together, two separate corporate entities called Public Citizen, Inc. and Public Citizen Foundation, Inc., form Public Citizen. Both entities are part of the same overall organization, and this Web site refers to the two organizations collectively as Public Citizen.

Although the work of the two components overlaps, some activities are done by one component and not the other. The primary distinction is with respect to lobbying activity. Public Citizen, Inc., an IRS § 501(c)(4) entity, lobbies Congress to advance Public Citizen’s mission of protecting public health and safety, advancing government transparency, and urging corporate accountability. Public Citizen Foundation, however, is an IRS § 501(c)(3) organization. Accordingly, its ability to engage in lobbying is limited by federal law, but it may receive donations that are tax-deductible by the contributor. Public Citizen Inc. does most of the lobbying activity discussed on the Public Citizen Web site. Public Citizen Foundation performs most of the litigation and education activities discussed on the Web site.

You may make a contribution to Public Citizen, Inc., Public Citizen Foundation, or both. Contributions to both organizations are used to support our public interest work. However, each Public Citizen component will use only the funds contributed directly to it to carry out the activities it conducts as part of Public Citizen’s mission. Only gifts to the Foundation are tax-deductible. Individuals who want to join Public Citizen should make a contribution to Public Citizen, Inc., which will not be tax deductible.

 

To become a member of Public Citizen, click here.
To become a member and make an additional tax-deductible donation to Public Citizen Foundation, click here.