On the Children of Garcetti

From the Duke Law summary “…KENNEDY, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, THOMAS, and ALITO, JJ., joined.”

The Gang of Four.

Damn formatting – that string of hyphens was supposed to be a line above the comment copied over from EOTAW. Anyway, here’s an old post I wrote on Ceballos.

Or maybe John Yoo is a bad example–so what about a DMV clerk who is in the habit of expressing her candid opinion about the looks and probable morals of people applying for drivers’ licenses, to the applicant’s faces? Does a DMV clerk have a First Amendment right to call you an ugly slut?

This seems very weird, going on the the published opinion (the oyez summary seems particularly poor even for this kind of potted interpretation – e.g. ‘Ceballos’s employers were justified in taking action against him…’).

For some reason, it all seems to hinge on the memo as it was submitted internally. But the basis on which retaliation was alleged to have occurred was (a) testifying for the defence and possibly (b) submitting the memo to the court (as an exhibit?) – though none of the Supreme Court opinions seemed to mention this as far as I could see (admittedly skimming). Surely neither of those were part of his official duties, nor carried out in his official capacity. So the point of law held to be at issue seems beside the point.

(If on the other hand the whole thing was about his internal submission of the memo, I would have thought that employment law would be the relevant jurisdiction, and the First Amendment quite rightly – pace LizardBreath above – regarded as silent on the matter.)

It’s a bit of a shocker – if the above is right – that the Supreme Court justices (applying my best guess as to why they all behaved in this way, dissenting or not) seem so preoccupied with whatever question is put in front of them and deciding abstract points of law that they don’t really bother to look at the facts (unless they are very closely tied to the pleaded points – and those were at some point badly stated by counsel for the respondent). If that’s correct, it’s not a very judicial or Common Law way of going about things I’d have said. But then they see themselves as having a quasi-legislative function I suppose – and maybe that doesn’t get discussed properly because the question of ‘activist judges’ in the US seems to be code for some completely different set of topics, as far as I can make out.

Still maybe that’s what you get for having a written constitution with a politicised court to legislate around it. And it may be worth it, to have an entrenched written constitution (assuming it says all the right things to start with of course). Still US law is a closed book (or Penal Code) to me. I expect I’ve missed something or got it arse-about-face in some way.

That’s supposed to be italics right to the end, but the server was having none of it.

I’m kind of surprised that it apparently doesn’t matter to the Court that Ceballos was in fact telling the truth, just as his office required him to do.

Try it this way. One way of describing that speech is protected under the First Amendment is to say that the government can’t punish you for it, regardless of whether the government thinks it’s good or bad speech. If the government is allowed to evaluate it as bad, or wrong, or low value, and on that basis punish you, that’s the same as saying that the speech is not protected. The next step is that the courts are an arm of the government just like the executive.

So a ruling that “Government employees’ speech in on-the-job contexts is protected by the First Amendment when it’s good (truthful, competent) speech but not otherwise” is equivalent to saying that “The government (in its role as an employer) may not use its judgment to decide when workplace speech is desirable and so protected and when it’s undesirable and so punishable; only the government (in its role as a court) can use its judgment to decide when workplace speech is desirable and so protected and when it’s undesirable and so punishable.”

You’ve still got the government deciding what you’re allowed to say on the job on a case-by-case basis — that’s not First Amendment protection, that’s just having courts rather than employers make judgment calls about what makes a good employee. (This is obscured in Caballos because it seems to be such an easy judgment call, and the employer seems to have gotten it so wrong, so trusting the employer’s judgment seems silly in that case. Hard cases make bad law, and all that.)

I’m not a lawyer, but rea’s DMV clerk example strikes me as irrelevant — the DMV clerk is not required to speak to you in any way *pursuant to their duties* except to say,” take this test, stand here, sign here”, etc.

The John Yoo case is different; pursuant to his duties as an attorney and law professor he is required to offer legal opinions. While I don’t think giving objectionable legal advice is a ground for dismissal I think he could be fired if that advice was judged to be fundamentally legally incompetent (by, say, the California Bar) (an outcome devoutly to be wished).

This seems to me to be the distinction — pursuant to his duties, the DA is required to give testimony. He of course could and should be punished by his supervisors for *incompetent* speech in any area relating to duties he is required to carry out (the John Yoo case). He might also be punished by his supervisors if he finished his required testimony and then said, “well, now if the court will give me a few more moments up here, I’d like to sing a little song about why my boss smells like cat pee!” (the insulting DMV clerk example — this speech has nothing to do with what is required by the job).

Likewise, if you are a university professor asked to evaluate the university President’s “vision plan”, and you say it’s crap, that was pursuant to your duties and the university can’t say peep. If you say, “the Uni president wants to colonize Mars! That’s crazy talk!”, and the plan doesn’t in fact propose a Mars colonization program, I do think that could be called incompetence and be grounds for some kind of censure.

LizardBreath – @3 you said Whether they’re right or wrong about that evaluation in any particular case — whether the written work was good or bad work — shouldn’t be a matter for the courts, relying on context to make clear that it meant “shouldn’t be a matter for the First Amendment”. Not trying to nitpick – I assume that there are protections like (the equivalent of) unfair dismissal in the US, so the wording might have allowed some readers to assume that the decision was effectively saying that you can be sacked for writing a report your boss doesn’t like, where in fact the issue was whether you are constitutionally immune from such sacking.

Just found the bit in oral argument relating to alternative remedies:

Justice Scalia: What if the reason… what if the reason for the… for firing him is that he’s a Democrat and it’s a Republican Administration, and the speech is used as the pretext?

Mr. Himmelfarb: Justice Scalia, I think that case would be covered by this Court’s patronage cases, which would absolutely prohibit that sort of employment action.

But in a case where it’s not party affiliation that motivates the employment action, if the speech is expressed in carrying out the employee’s duties, he may have a civil service remedy… indeed, that’s precisely what the civil service laws were designed to deal with, a situation where the employee is just doing his job, an action is taken again him, and there’s a dispute as to whether he was doing his job properly, about whether he was insubordinate…

And by the same token re #12, perhaps the shift in the last para to ‘the state-as-executive v state-as-courts deciding on what’s a good employee’ isn’t quite the way to put it – after all, the courts can presumably remedy some of the executive’s decisions on employment. As suggested above, it’s not quite a dichotomy between first amendment protection on the one hand and ‘punishability’ (unchallengeable fireability) on the other.

A separate point that might be helpful: as I suggest above – and correct me if I’m wrong – the decision only related to an internal memo, presumably because of admissions made, or allegations not made, at first instance. It wasn’t about, say, informally tipping off the defence, and certainly not complying with a subpoena. (And neither the Duke nor the Oyez summaries make that clear.) So whistleblowing didn’t come into it, which might also help to explain why at a glance it looks so much worse than it actually is.

Still, maybe from the UK perspective of parliamentary sovereignty I can’t fully appreciate the force in the US of the ‘permanent bulwark’ symbolism that what-the-SC-currently-says-about-the-constitution has.

Hong is now on appeal to the Ninth Circuit. Given the timing, I’d expect a decision very soon. The AAUP filed an amicus brief, available here: http://www.tjcenter.org/wp-content/uploads/JuanHongvStanleyGrantSACV06-0134CJC(RNBx).pdf

No, they discourage whistleblowing, because one’s superiors no longer have to find an excuse to screw one over; they can just cite the whistleblowing itself.

Though how that’s supposed to help the whistleblower when s/he next comes up for review, I don’t know.

Well, on the bright side, most whistleblowers in the US are well-rewarded for going public, even after retaliation by their employers.

Last one was addressed to Barry @23.
MB: By supposedly giving them constitutional protection from retaliation, I suppose. If that’s not good enough, how is anything supposed to help the whistleblower when they come up for review? Are you referring to evidentiary issues with establishing retaliation – which would appear to apply either way? In any case I find it hard to believe that there aren’t non-constitutional procedures to deal with that kind of thing. I suppose I just don’t share the ethos of the Constitutional protections model – I’m used to legislation being called legislation and done by a Parliament which can’t bind its successors (expect by extending the franchise or changing the judges’ oath). But can the SCOTUS bind its successors (a) de jure, (b) de facto?

2nd sentence above should read:

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?

But surely when Ceballos claimed that false statements were made in a warrant, he was speaking to a matter of public concern, since his complaint goes precisely to the question of the legitimacy of proceedings undertaken by the DA’s office? Or are you and the SCOTUS majority doing the Pickering calculus differently than Eric and Robert Halford are?

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.

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

The difference between LB and me is not over the question of what is or isn’t a matter of public concern.

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.

no one out there who thinks his employer would be permitted under the First Amendment to fire him for it.

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.

I was oversimplifying Pickering. I’ll still argue that that sort of balancing test, while not unworkable, doesn’t make a whole lot of sense in this context, and the bright-line rule is better. To the extent the second prong is “could show that it was justified in applying a different standard to the employee than it would to a private citizen”, obviously, that prong is satisfied for every case of speech-as-part-of-the-employee’s-duties — there’s no way for a government employer to apply the same standard to a private citizen, because a private citizen is never in the position of speaking as part of its duties as an employee of the government.

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.

Probably too late for this but I’ve been away from my workstation. Anyway a dead thread makes a handy jotter at least…

@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?

——————————

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?

——————————

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…