@29 Tim, all that that need to do is to classify whatever channel the professor used as ‘part of his job’. not me – the courts. And ‘in pursuit of the duties’ is different from ‘falls under job description.’ or ‘related to job’. Presumably that’s what they’re going to be deciding a few times more in Hong, quite possibly even unto Kennedy himself.

mds, you forgot the sarcasm tag. steady on chaps, I hadn’t seen mds’s post when I posted the apparently-subsequent comment nor had anything to add. So give the dainty little snipes a miss, eh?
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MB @33 (re SCOTUS binding itself) depends on that there stare decisis and the degree to which each justice feels bound by settled (or unsettled!) precedent. i.e. the latter then?

Seemed suitably uncontentious and tractable to be Wikiable so I got some sort of answer there:
Stare decisis is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than that it be settled right…. But in cases involving the Federal Constitution, where correction through legislative action is practically impossible, this Court has often overruled its earlier decisions…. This is strikingly true of cases under the due process clause. Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406–407, 410 (1932) (Brandeis, J., dissenting).

For example, in the years 1946–1992, the U.S. Supreme Court reversed itself in about 130 cases.[6] The U.S. Supreme Court has further explained as follows:

[W]hen convinced of former error, this Court has never felt constrained to follow precedent. In constitutional questions, where correction depends upon amendment, and not upon legislative action, this Court throughout its history has freely exercised its power to reexamine the basis of its constitutional decisions. Smith v. Allwright, 321 U.S. 649, 665 (1944).

So one view is the de facto rejection of horizontal stare decisis (which I assume would have been the default assumption) inevitably bootstrapped into a de jure one.

Another forlorn attempt to ask a question – do those ‘Questions Presented’ have any binding legal force – e.g. to restrict the scope of the ratio? If so are they intended to encapsulate the dispute as agreed by the parties?
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I also noticed that Pickering as decided (rather than as applied on the 9th circuit, which I don’t know about), might seem to presuppose something unambiguously worse for free speech than Ceballos:

[I]t cannot be gainsaid that the State has inter-ests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general. The problem in any case is to arrive at a balance between the in-terests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the effi-ciency of the public services it performs through its employees.

Especially given that Pickering was a public whistleblower himself, this seems to imply a triple test: 1. public concern, 2. engaging (acting in?) one’s own interests as a citizen, 3. Not falling foul of the govt’s relevant interests in shutting you up.

The controlling factor in Ceballos’ case is that his ex-pressions were made pursuant to his duties as a calendar deputy. See Brief for Respondent 4 (“Ceballos does not dispute that he prepared the memorandum ‘pursuant to his duties as a prosecutor’ ”)…We hold that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment pur-poses, and the Constitution does not insulate their com-munications from employer discipline.

Seems to me that the ‘bright line’ makes things better overall – first, it clearly implies that an employee can speak as a citizen on topics related to his job (i.e. he’s not ‘always on duty’) – OK no great shakes, but…It also determines that such speech – citizen speech – falls outside any discretion of the court to appy a ‘balancing’ rule (not a very ‘fundamental rights’-y concept anyway – 1st engine of tyranny and all that).

The bright line rule is only unambiguously worse than the informal ‘balancing’ approach adopted by the 9th circuit if it falls outside (or alongone edge of) the region within which the courts’ discretion previously operated. And it doesn’t – because Pickering and the 9th circuit didn’t distinguish between speech as a citizen and speech as an employee, so some balancing (i.e. possible – probable? – denial of protection) would occur in cases where 1st amendment protection would now be unequivocally applied. So you get a bright line which eliminates balancing which would previously occurred on both sides of the line, and you get a clear rule which aids your decision on what to do as a potential whistleblower/dissenter – you will not have to submit yur case to some opaque ‘balancing’ test.

What might be more, protection of citizen speech isn’t (may I assume?) subject to a public concern condition. So if the position in Ceballo is that it’s not protected because it’s not citizen speech (and is instead public speech made in an official capacity) then in default of further relevant cases, it might seem that if you can show you are speaking as a citizen rather than an organ of the state then you are prima facie protected in any statement, true false offensive or negligent – and, possibly, regardless of public concern. Anyway, in Pickering/Ceballo cases the topic is about official duties therefore, one assumes though perhaps foolishly, regarded as of public concern.

I also suspect, contra Balkin, that grievance procedures against the employer wouldn’t fall within the rubric of acting in course of duties as an employee either.

Maybe if you have some general grievance of concern to the public, and fear retaliation, you should lodge a personal affidavit with your union to establish citizen speech and that even in the work milieu your comments are made in your own interest? The AAUP, rather than just spooking everyone (and shutting them up) with its dark mutterings, might want to look at recommending ways to take advantage of the new bright line, beyond which one need have no fear.

In regard to Hong, what about professional ethics – how does that come in? Can a contractual duty be recognised if or insofar as it requires illegal/unethical practices found this on such topics, though not scholarly.

End stream of consciousness…

So, for the second prong to have any effect in this context, it has to be read as not only was the government justified in applying a different standard, because that’s necessarily always going to be true, but rather whether the court approves of the specific standard the government applied in practice. It’s simply substituting a court’s judgment about what’s good and bad speech for the government employer’s judgment. That’s not necessarily unworkable, if the courts are restrained about it, but it doesn’t have much of a resemblance to speech that’s genuinely protected by the First Amendment.

But if we read Pickering as content-neutral, then it has to protect stupid, incompetent, or malicious speech on matters of public interest, then it has to protect stupid, incompetent, or malicious speech on matters of public interest, and at that point it’s clear that applying it to protect speech that’s part of your employment duties is unworkable

I think this is doubly wrong—that is, I think you’re plainly wrong both about the content of the Pickering rule, and that you’re also wrong about the question of what is and is not “unworkable.”

The Pickering test that existed before Ceballos had two prongs. First, a court asked whether or not the speech was on a mattier of public concern (if not, no First Amendment protection, and this took care of the majority of cases). Second, if the speech was on a matter of public concern, a court asked whether the government could show that it was justified in applying a different standard to the employee than it would to a private citizen. You’re just ignoring the second prong. The Pickering rule didn’t provide absolute protection of stupid, malicious, or incompetent speech. All the rule did was create a balancing test, in which the public employer had to show a compelling justification for retaliating on the basis of the speech. That enquiry, of course, required looking at the reasons why the public employer felt that retaliation was appropriate.

This kind of balancing test—and protection of speech—was applied in the Ninth Circuit, which covers about 1/4 of the population of the US, for years. Public employers were still able to function. They were still able to fire incompetent employees. In fact, the kind of protection offered by Pickering was rarely invoked. So, there’s strong evidence that this kind of rule was, in fact, workable.

Just to be clear, the difference between LB and me is not over the question of what is or isn’t a matter of public concern. It’s whether or not it was necessary to move from the balancing test found in Pickering to the more bright-line rule of Ceballos.

Come to think of it, reading the linked post, Balkin may think that. If he does, I think he’s wrong about the holding of Ceballos. If he’s right and I’m wrong about what Ceballos stands for, then he’s right and I’m wrong about whether or not it’s a good decision.

If all of that made sense.

There’s an important hair to be split here on the meaning of ‘job-related speech’. Job-related speech is unambiguously protected by the First Amendment, so long as the speech-act in question is not part of the duties of the job. If Ceballos had written a letter to the editor, or gone home and called his city councilman, or done anything else on his own time to make a fuss about the bad affidavit, there’s no one out there who thinks his employer would be permitted under the First Amendment to fire him for it. A public employee can take the knowledge and expertise he develops on the job and bring that into the public discourse with no fear of employment action against him.

What he can’t do, under Ceballos, is perform the duties of his job in a way his employers find unsatisfactory, and shield himself with the First Amendment by saying that “Because my employment duties consist of speech rather than action, a court rather than my employer is the arbiter of whether that speech constitutes satisfactory performance of my job.”

What the Court did in Ceballos mostly affected the second prong of the Pickering test. That is, it took what had been a balancing-test kind of rule, in which courts would look at the public agency’s rationale for banning the speech, and turned it into a bright line rule that any speech made in an employee’s “official capacity” was ipso facto not subject to any First Amendment protection at all.

I think this is doubly wrong—that is, I think you’re plainly wrong both about the content of the Pickering rule, and that you’re also wrong about the question of what is and is not “unworkable.”

The Pickering test that existed before Ceballos had two prongs. First, a court asked whether or not the speech was on a mattier of public concern (if not, no First Amendment protection, and this took care of the majority of cases). Second, if the speech was on a matter of public concern, a court asked whether the government could show that it was justified in applying a different standard to the employee than it would to a private citizen. You’re just ignoring the second prong. The Pickering rule didn’t provide absolute protection of stupid, malicious, or incompetent speech. All the rule did was create a balancing test, in which the public employer had to show a compelling justification for retaliating on the basis of the speech. That enquiry, of course, required looking at the reasons why the public employer felt that retaliation was appropriate.

This kind of balancing test—and protection of speech—was applied in the Ninth Circuit, which covers about 1/4 of the population of the US, for years. Public employers were still able to function. They were still able to fire incompetent employees. In fact, the kind of protection offered by Pickering was rarely invoked. So, there’s strong evidence that this kind of rule was, in fact, workable.

LB @ 30: Ah, now we get to the nub of the gist. Thanks for being so patient with us neophytes and nonspecialists who still disagree with you. Thing one:

The difference between how I’m reading Pickering and how Halford is comes down to what “public concern” means. As I read it, “public concern” refers to the topic, not to the content, of the utterance, if you see the distinction. “OMG, the district attorney filed a false affidavit!” is on a topic of public concern. But it’s on a topic of public concern whether it’s true, false, or technically true but actually bullshit (that is, I’ve probably filed affidavits with falsehoods in them due to editing mistakes or miscommunications, but not with material falsehoods in them. Someone putting an outraged memo in the file about a false affidavit when the falsehood was immaterial and accidental might be telling the truth, and still be engaged in conduct that a reasonable employer would disapprove of and want to be able to discourage.) As I understand Halford to be reading “public concern”, it’s limited to speech whose content in determined to be valuable—truthful, competent whistleblowing and such.

Hmmm, I think you may be right about Halford, which would reinforce your argument @ 13: it’s not a question of whether it’s good or bad speech. But—and I’m sorry I misphrased this first time around, when I seemed to suggest that it was a question of whether Ceballos was right or not—I think the content/topic distinction you draw here actually helps my reading of the case. If you’re saying that a deputy DA who says, “OMG, the DA filed a false affidavit” is speaking on a topic of public concern, then I don’t see why his speech isn’t protected under the Pickering precedent. On the contrary, inasmuch as we have a public interest in seeing that DA offices function properly and aren’t corrupted by false statements on warrants, I would think that Ceballos would be totally in the clear on this.

Thing two:

There’s a case whose name I can’t remember offhand where a government employee was disciplined or fired for saying something approving while he was at work about the assassination attempt on President Reagan, and that speech was protected under Pickering because it was on a topic of public concern. In that case, there was no public interest in the content of his speech—assassination is generally bad, whatever you think of Reagan, and there’s no particular interest in having government employees say that it’s good. But it was still protected speech, because it didn’t interfere with or affect the performance of his duties, and citizens have the right to say even stupid and hateful things.

It’s Rankin v. McPherson, and Jack Balkin addresses it in the course of his reading of Garcetti v. Ceballos. Which, I know, you disagree with. So here’s where I have my question:

Reading Pickering to protect only speech whose content we approve of narrows it way down—it would have allowed the Reagan hater above to be fired. But if we read Pickering as content-neutral, then it has to protect stupid, incompetent, or malicious speech on matters of public interest, and at that point it’s clear that applying it to protect speech that’s part of your employment duties is unworkable.

I’m reading you as saying that because Pickering protects all speech in a content-neutral way, it cannot apply to job-related speech because this would give cover to incompetent, erroneous, or malevolent speech that would mess up workplaces real bad. But doesn’t this lead to the perverse conclusion that state employees have First Amendment protection only for things they say that have no bearing on their jobs? And no protection at all for job-related things they say that actually bear on matters of broad public interest? As Balkin puts it:

In the original decision in this line of cases, Pickering, the Court suggested that one reason for protecting employee speech is that employees, by their position and expertise, might have information and perspectives that would be particularly valuable contributions to the public in deliberation about public issues. Not all employees would, of course, but enough would that protecting employee speech would leverage their knowledge and expertise. (At the same time, the Court was worried that employees would use their assumed expertise to make false statements of fact that would be difficult for employers to rebut). Thus, we can see Pickering as a case about information policy; i.e., a set of decisions about how government should promote the creation and dissemination of valuable information throughout society. The Pickering test, as originally conceived, sought to promote the spread and diffusion of valuable information from people who would have reason to know about government policies and whether they made sense or were inefficient, unwise, corrupt, or illegal.

The problem with this vision was that it ran headlong into the government’s interest in preserving workplace harmony and managerial efficiency. No employer likes an employee who makes him or her look bad, and this almost always causes strife within the workplace, since the employee who complains is almost always suggesting that someone else did a bad job, was corrupt, or in Ceballos’s case, acted illegally.

Instead, the 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, as in the case of Rankin v. McPherson.

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. Although the Court suggests that its decision will encourage the creation and use of such internal procedures, it will probably not have that effect.

Which gets us back to Tim’s question @ 22, 26-27 as well.

I think this is doubly wrong—that is, I think you’re plainly wrong both about the content of the Pickering rule, and that you’re also wrong about the question of what is and is not “unworkable.”

The Pickering test that existed before Ceballos had two prongs. First, a court asked whether or not the speech was on a mattier of public concern (if not, no First Amendment protection, and this took care of the majority of cases). Second, if the speech was on a matter of public concern, a court asked whether the government could show that it was justified in applying a different standard to the employee than it would to a private citizen. You’re just ignoring the second prong. The Pickering rule didn’t provide absolute protection of stupid, malicious, or incompetent speech. All the rule did was create a balancing test, in which the public employer had to show a compelling justification for retaliating on the basis of the speech. That enquiry, of course, required looking at the reasons why the public employer felt that retaliation was appropriate.

This kind of balancing test—and protection of speech—was applied in the Ninth Circuit, which covers about 1/4 of the population of the US, for years. Public employers were still able to function. They were still able to fire incompetent employees. In fact, the kind of protection offered by Pickering was rarely invoked. So, there’s strong evidence that this kind of rule was, in fact, workable.

mds, you forgot the sarcasm tag.

My apologies, Barry, but I blow through my quota of those by 9:30 AM.

But if we read Pickering as content-neutral, then it has to protect stupid, incompetent, or malicious speech on matters of public interest, and at that point it’s clear that applying it to protect speech that’s part of your employment duties is unworkable.

This gets away from the legal machinery a bit, and into more philosophical concerns, but hey, it’s Crooked Timber.

At the poster’s main blog, I have already tersely referred to this, but LizardBreath has made it more concrete. I read the excerpt above, and while I still find it troubling in a way I can’t easily express, I can acknowledge the validity of the argument. But with my telepathic superpowers, I know that four of the Supreme Court justices in the majority followed nothing like LB’s above reasoning. And this seems relevant at some level, which again I lack a good means of expressing. Perhaps it’s in the way that Garcetti would not seem to require the finding (so far) in Hong, unless perhaps one realizes that a Supreme Court faced with Hong would rule similarly, even though “in performance of one’s duties” can be read so broadly for an academic as to become all-encompassing.

We are. The difference between how I’m reading Pickering and how Halford is comes down to what “public concern” means. As I read it, “public concern” refers to the topic, not to the content, of the utterance, if you see the distinction. “OMG, the district attorney filed a false affidavit!” is on a topic of public concern. But it’s on a topic of public concern whether it’s true, false, or technically true but actually bullshit (that is, I’ve probably filed affidavits with falsehoods in them due to editing mistakes or miscommunications, but not with material falsehoods in them. Someone putting an outraged memo in the file about a false affidavit when the falsehood was immaterial and accidental might be telling the truth, and still be engaged in conduct that a reasonable employer would disapprove of and want to be able to discourage.) As I understand Halford to be reading “public concern”, it’s limited to speech whose content in determined to be valuable—truthful, competent whistleblowing and such.

There’s a case whose name I can’t remember offhand where a government employee was disciplined or fired for saying something approving while he was at work about the assassination attempt on President Reagan, and that speech was protected under Pickering because it was on a topic of public concern. In that case, there was no public interest in the content of his speech—assassination is generally bad, whatever you think of Reagan, and there’s no particular interest in having government employees say that it’s good. But it was still protected speech, because it didn’t interfere with or affect the performance of his duties, and citizens have the right to say even stupid and hateful things.

Reading Pickering to protect only speech whose content we approve of narrows it way down—it would have allowed the Reagan hater above to be fired. But if we read Pickering as content-neutral, then it has to protect stupid, incompetent, or malicious speech on matters of public interest, and at that point it’s clear that applying it to protect speech that’s part of your employment duties is unworkable.

mds, you forgot the sarcasm tag.

If that’s not good enough, how is anything supposed to help them when they come up for review – whether they are a public whistleblower or merely a dissenter?