Academic journal article The William and Mary Bill of Rights Journal

Garcetti V. Ceballos: Stifling the First Amendment in the Public Workplace

Academic journal article The William and Mary Bill of Rights Journal

Garcetti V. Ceballos: Stifling the First Amendment in the Public Workplace

Article excerpt

INTRODUCTION

On May 30, 2006, more than 19.4 million public employees nationwide1 lost a battle in the war being waged against free speech. Upon deciding Garcetti v. Ceballos, the Supreme Court held 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."2 The subsequent chilling effect this decision will have on the most honest of civil servants has the potential to result in both public and private sector conduct going unreported.3 The First Amendment famously provides that "Congress shall make no law . . . abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."4 The Court has repeatedly announced that First Amendment protection includes "the receipt of information and ideas as well as the right of free expression," because "public debate must not only be unfettered; it must be informed."5 Public employee speech must be considered an essential element of this protection because "[w]hen government employees are silenced, it is the public that is the principal loser."6

This Note advocates a return to the balancing test enunciated in Pickering v. Board of Education1 as opposed to the per se rule adopted by the Court in Garcetti. Part I discusses the factual background and legal argument made by the Court in Garcetti.8 Part II reviews public employee speech jurisprudence throughout the history of the Court.9 Part HI discusses the aftermath of the Garcetti decision, including the impact the decision will have on government whistleblowers, prosecutors, and public school teachers.10 Part HI also presents and rebuts the policy considerations in favor of the per se rule adopted by the Court.11 The Note concludes that the best way to protect the constitutional guarantee of freedom of speech for public employees is to reinstate the Pickering balancing test, which weighs the employee's interest in free speech against the employer's interest in operating an efficient workplace.12

I. THE CASE

A. The Facts

The factual background of Garcetti deserves recitation in order to gain an accurate picture ofthe speech that the Court deemed unprotected and the actions that resulted. In 1998, Richard Ceballos was employed as a deputy district attorney at the Los Angeles County District Attorney's Office.13 He served as a calendar deputy which gave him supervisory responsibility over two to three deputy district attorneys.14 A defense attorney in a case being prosecuted by the District Attorney's Office informed Ceballos that he believed that one of the deputy sheriffs may have lied in an affidavit necessary to gain a critical search warrant.15 The defense attorney asked Ceballos to investigate.16 After conducting an investigation, Ceballos determined that the affidavit "at the least, grossly misrepresented the facts."17 Following this discovery, Ceballos authored a memorandum addressed to the defense attorney, the parties in the case, and his supervisor, District Attorney Gil Garcetti.18 The memo outlined Ceballos' concern regarding the affidavit and recommended that the District Attorney dismiss the case. 19 After a heated discussion and pressure from the Sheriffs Office, the District Attorney chose to disregard Ceballos' recommendation and proceed with the case.20 Ceballos was then called to testify for the defense at a hearing on the defense's motion to traverse regarding the observations Ceballos made in the memorandum about the affidavit and the information uncovered during his investigation.21

Following the hearing, a number of retaliatory employment actions occurred, leading Ceballos to file suit.22 Ceballos was reassigned, demoted to a position as a trial deputy, transferred to another courthouse,23 and denied a promotion. …

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