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

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.