This is speech that amongst friends used to be harmless venting, but on the Internet it is a felony.
It's going to be interesting to see how it plays out in the courts. This speech case that was decided Monday has got some upsetting things in it. Here is a comment from Patterico, who is a DA in Ceballo's office.
Garcetti v. Ceballos
Patterico @ 6:49 am
The Supreme Court yesterday decided the case of Garcetti v. Ceballos, which addresses the extent of First Amendment protection for speech by government employees.
In a nutshell, Ceballos said that he exposed police dishonesty in a memo to supervisors, and was punished for it. And the Court said by a 5-4 decision that this did not violate the First Amendment.
I disagree.
Details in the extended entry.
(Note: my summary of Ceballos's allegations does not constitute an opinion as to the true facts. The Supreme Court was required to treat Ceballos's allegations as true, because this was an appeal from summary judgment, and that's what you do on summary judgment: assume that all justifiable inferences be drawn in favor of the plaintiff. I know two of the people involved in the case, but I do not express any opinion as to the true facts of the case or any of the people involved, and I will delete any comments that discuss the personalities involved. If you don't like it, move on to the next post or the next blog. This is a very interesting case on the proper scope of the First Amendment, and I will strictly confine the discussion to that issue alone.)
Ceballos, a prosecutor in the L.A. County D.A.'s office, alleged that he had investigated a defense claim of officer misconduct, and determined that a sheriff's deputy had lied in a search warrant affidavit. Ceballos wrote a memo to his supervisors setting forth his conclusions and recommending dismissal of the case. They disagreed with his conclusions and said that the defense should proceed with a motion challenging the search warrant affidavit. According to Ceballos, one of his supervisors instructed him to withhold substantial parts of his memo from the defense. Instead, he turned over the memo, redacting only work-product conclusions. Ceballos says that the same supervisor threatened retaliation if Ceballos testified at the hearing on the defense motion that he believed that there were intentional misrepresentations in the affidavit.
Ultimately, a judge found the warrant sufficient regardless of whether the affidavit contained the misrepresentations that Ceballos claimed. Ceballos was subsequently reassigned to lower-level assignments, which he claimed was retaliation for 1) writing the memo, 2) testifying truthfully at the hearing on the defense motion, and 3) discussing the incident in a speech to a local bar association.
The Supreme Court case was only about claim #1. The Ninth Circuit had ruled as to claim #1 that Ceballos's memo was protected free speech under the First Amendment, and that government retaliation for that speech was actionable under the Constitution and statutes that provide remedies for federal constitutional violations.
The Supreme Court reversed in a 5-4 decision. The majority, composed of conservatives Kennedy, Alito, Thomas, Scalia, and Roberts, sided with the Government, holding that speech by a government employee pursuant to his official duties is not protected by the First Amendment. Since Ceballos's preparation of the memo in question was indisputably pursuant to his official duties, the Court ruled, he had no First Amendment claim as to retaliation for the memo.
Government employee speech claims are generally evaluated using a balancing test: 1) is the speech a matter of public concern? and 2) does the government have an adequate justification for suppressing it? Past holdings say, for instance, that a teacher can't be punished for writing a letter to the editor regarding school funding, because it's a matter of public concern, and the teacher is acting as a citizen.
In Ceballos, the Court created a bright-line rule that says: when the speech is pursuant to an employee's official duties, the balancing test will always be resolved in favor of the employer.
This has terrible implications for academic freedom, as the dissent observes. Speech within the classroom is almost always pursuant to a teacher's official duties (though, as we have seen, not always). If a school can punish a teacher for his views, that feels intuitively like a classic First Amendment violation. Rather than explaining why their bright-line rule makes sense even as applied to teachers, the justices in the majority deal with this problem by suggesting that teachers might be different.
Why are teachers different?
Isn't a prosecutor exposing police misconduct as significant to the public good as a teacher speaking his mind in the classroom?
The opinion has the ironic effect of depriving prosecutors of a First Amendment claim any time that supervisors retaliate against them for exposing police misconduct. Exposing known police misconduct is generally required of prosecutors by Brady v. Maryland, which requires prosecutors to turn over to the defense all exculpatory evidence in the possession of the prosecution or police. Therefore, it is part of their official duties to expose police misconduct — meaning that, when they do so within their office, this is not constitutionally protected speech, and employers can retaliate against them without offending the First Amendment.
I assume that prosecutors will still turn over exculpatory information even though they have no constitutional protection from retaliation from their employers if they do so. It's still obviously morally wrong to withhold exculpatory evidence. You can lose your bar card and your reputation, and potentially face civil and criminal liability. No prosecutor I know would withhold such evidence because they have lost the potential for a First Amendment claim in federal court if they suffer retaliation.
Still, one could argue the same about teachers. What teacher worth his salt would fail to speak his mind in class just because he doesn't have a First Amendment claim in federal court if fired?
My guess: such teachers exist. The First Amendment should be there to protect them from having to worry about such issues. And when a prosecutor speaks responsibly and truthfully about police misconduct, the First Amendment should protect him as well.
As Jack Balkin says:
[T]he Court has retreated to a vision of employee speech cases where employees are protected only where they are least likely to be in a position to know what they are talking about . . .
After Ceballos, employees who do know what they are talking about will retain First Amendment protection only if they make their complaints publicly without going through internal grievance procedures.
That is not good policy or good constitutional law.
I am disappointed in my favorite conservative justices today.
P.S. This blog post was not written pursuant to my official duties as a prosecutor.
patterico.com |
