Court Curbs the Speech of Public Employees

By David G. Savage

May 31, 2006 12 AM PT

Times Staff Writer

WASHINGTON — The Supreme Court on Tuesday restricted the free-speech rights of the nation’s 21 million public employees, ruling that the 1st Amendment does not protect them from being punished for complaining to their managers about possible wrongdoing.

Although government employees have the same rights as other citizens to speak out on controversies of the day, they do not have the right to speak freely inside their offices on matters related to “their official duties,” the high court said in a 5-4 decision.

“When a citizen enters government service, the citizen by necessity must accept certain limitations on his or her freedom,” said Justice Anthony M. Kennedy, rejecting a lawsuit brought by a Los Angeles County prosecutor.

Lawyers for government whistle-blowers denounced the ruling as a major setback. They said it could threaten public health and safety. Public sector hospital workers who know of dangers may be discouraged from revealing them, while police and public employees may be dissuaded from exposing corruption, they said.

“In an era of excessive government secrecy, the court has made it easier to engage in a government coverup by discouraging internal whistle-blowing,” said Steven Shapiro, legal director for the American Civil Liberties Union.

However, lawyers for city and state agencies said the decision will prevent routine internal workplace disputes from becoming federal court cases.

The decision threw out most of a lawsuit filed by Deputy Dist. Atty. Richard Ceballos, who said he was disciplined after he wrote internal memos alleging that a police officer may have lied to obtain a search warrant.

The prosecutor urged his supervisors to dismiss a pending criminal case because of the police misconduct. His advice was rejected, and he was transferred to a lesser job farther from his home and denied a promotion.

Ceballos then sued county officials, including then-Dist. Atty. Gil Garcetti, alleging he was retaliated against for speaking out within the office. The U.S. 9th Circuit Court of Appeals agreed that he was entitled to a trial on his lawsuit because he had spoken on a “matter of public concern.” But the Supreme Court reversed that ruling Tuesday.

“The 1st Amendment does not prohibit managerial discipline based on an employee’s expressions made pursuant to official responsibilities,” Kennedy said in Garcetti vs. Ceballos.

The court’s newest justice, Samuel A. Alito Jr., cast a crucial vote to form the pro-government majority. The justices first heard the case in October, but they apparently were split, 4 to 4, when Justice Sandra Day O’Connor stepped down in February. The case was reargued in March. Also joining Kennedy were Chief Justice John G. Roberts Jr. and Justices Antonin Scalia and Clarence Thomas.

Because Tuesday’s decision interprets the 1st Amendment, it applies to all public institutions -- including federal and state agencies, public hospitals and public schools and colleges.

The dissenters said they would have left the courthouse door open to such 1st Amendment suits. “I would hold that private and public interest in addressing official wrongdoing and threats to health and safety can outweigh the government’s stake” in running an efficient office, said Justice David H. Souter.

The dissenters cited the case of an engineer overseeing the building of a dam who was fired after questioning the work of private contractors. In another case, a city worker was dismissed after reporting thefts from the lottery board.

The federal government and most states have laws designed to protect whistle-blowers. For example, a California law forbids employers from retaliating against workers who “disclose a violation of a federal or state statute or regulation.”

But advocates for whistle-blowers say these laws prove ineffective in many cases. That’s why they say the free-speech guarantee of the 1st Amendment has been crucial.

“Public employee truth-tellers are essential to the safety and welfare of our country. They expose corruption, fraud and national security shortcomings,” said Joanne Royce, counsel for the Government Accountability Project in Washington.

Still, Tuesday’s majority opinion left open the possibility that an employee might be shielded by the 1st Amendment if he or she acted as a “citizen,” rather than in an official capacity, and took complaints to a newspaper or to a state legislator.

Justice John Paul Stevens said in dissent that it “seems perverse” to protect whistle-blowers who go public, while punishing those who take their concerns to their managers.

“We think this is a bad decision, but it may not be a catastrophe,” said Peter Eliasberg, an ACLU lawyer in Los Angeles. “It basically says, if you go to the L.A. Times, you might get some protection. But if you report it in the office and up the chain of command, you don’t have any protection under the 1st Amendment.”

For much of its history, the Supreme Court said the free-speech guarantee did not protect public employees. The justices followed the 19th century adage of Oliver Wendell Holmes that “a policeman may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.”

But in the 1960s, the court began to say government employees could not be forced to swear loyalty oaths or be punished for their political views. In a key decision, the court in 1968 reversed the firing of a suburban Chicago schoolteacher who had angered the local school board by writing a letter to a newspaper complaining that it had misspent public money on sports rather than education. Teacher Marvin Pickering’s letter addressed “a matter of public concern” and deserved to be protected as free speech, the court said.

In 1983, the court backtracked somewhat and said public employees can be fired for voicing complaints involving “internal office matters.”

The case of the Los Angeles prosecutor involved both elements: an internal office dispute concerning a matter of public concern -- alleged misconduct by the police.

In writing for the appeals court, Judge Stephen Reinhardt issued a strong opinion for Ceballos and said it “would seriously undermine our ability to maintain the integrity of our government operations” if public employees were stripped of their free-speech rights.

The Bush administration, the National League of Cities, the National School Boards Assn. and other groups of public employers joined the case on the side of Los Angeles County officials.

Los Angeles County Dist. Atty. Steve Cooley praised the decision, saying it “allows public employers to conduct the people’s business without undue disruption and without turning routine personnel decisions into federal cases.”

The facts involving the complaint brought by Ceballos remain unclear, partly because the case had not gone to trial.

And it may not be over for Ceballos, said his lawyer Humberto Guizar. He noted the court’s decision focused only on the memos the prosecutor wrote to his supervisor.

Later, Ceballos testified in court for the defendant, who challenged the validity of the search warrant, and he spoke about the case to the Mexican-American Bar Assn.

Those actions may have figured in the retaliation against him, Guizar said, and they can be raised when the case returns to a court in Los Angeles.

“We are disappointed, but not completely discouraged,” he said.