A deeply divided Supreme Court has given government supervisors at all levels - from federal agencies down to city departments - new authority to restrict internal complaints by their employees, even when the staff members are acting as whistleblowers to expose wrongdoing.

The 5-4 ruling, in addition, carries with it the potential for restricting what public employees may say if, instead of protesting internally, they go public with their grievances. The uncertainty over this potential - and some uncertainty in key phrases in the majority opinion -- appears likely to stir up a wave of new challenges seeking clarification.

Court Opts for Management Discretion over Employee Speech.
For nearly four decades, the Supreme Court has been balancing, on the one hand, the needs of public employers to maintain discipline and efficiency within their ranks and, on the other hand, the desires of their employees to speak out, protest or complain. In the new decision on May 30, 2006, in the case of Garcetti v. Ceballos, the court set aside one area of employee speech where it will require no balancing at all: disciplining of public employees when supervisors are troubled by employee statements or memos made or written while carrying out official duties.

The case grows out of a disputed criminal prosecution in Los Angeles County six years ago. A deputy county prosecutor, Richard Ceballos, became convinced that the criminal case was being pursued based upon evidence gathered with a faulty search warrant, obtained with misrepresentations by a sheriff´s deputy. He wrote a memo urging that the case be dropped, causing a major rift between the prosecutor´s and sheriff´s offices. He claimed his First Amendment free-speech rights were violated when he was then denied a promotion and transferred to a less desirable position in a different location - in retaliation, he asserted, for speaking out. (The criminal case went forward anyway.) The 9th U.S. Circuit Court of Appeals ruled that his free speech rights had been violated. The Supreme Court overturned that result.

Here is the nub of the majority´s ruling against Ceballos´ claim: "The First Amendment does not prohibit managerial discipline based on an employee´s expressions made pursuant to official responsibilities." Thus, Justice Anthony M. Kennedy declared for the court, an employee can make no claim of unconstitutional retaliation if disciplined for such statements.

Dissenters Say Decision Invites Litigation over What Constitutes Official Speech.
The court used variations in phrasing in discussing the category of expression at issue: statements made "pursuant to official duties" or "speech that owes its existence to a public employee´s professional responsibilities" or statements made "in the course of doing his or her job." But it never gave a precise definition of the real-world scope of the new doctrine. The dissenters, therefore, complained that "the majority´s opinion comes with no guarantee against fact-bound litigation over whether a public employee´s statements were made ´pursuant to...official duties.´ In fact, the majority invites such litigation by describing the enquiry as a ´practical one,´ apparently based on the totality of employment circumstances."

The majority, in fact, said that "we have no occasion to articulate a comprehensive framework for defining the scope of an employee´s duties in cases where there is room for serious debate." Developing such a "framework," therefore, would seem to be a task left to future court cases.

The decision was focused on the internal character of Ceballos´ grievances contained in the disputed memo. That led some court observers, in initial reactions, to suggest that the ruling was confined to within-the-office or on-the-job expression. On closer reading, however, it is by no means a certainty that the ruling would not extend to expression beyond the workplace - if it is related to an employee´s duties at work.

The majority took some care to say that government workers "retain some possibility of First Amendment" protection when they engage in expressive activity of the kind "engaged in by citizens who do not work for the government" - such as writing a letter to a local newspaper, or discussing politics with a co-worker. But, at the same time, the court was very specific in saying that this level of protection would exist only for public employees when they "make public statements outside the course of performing their official duties."

Government Employers´ Control Over Speech Might Extend to Public Forums.
The ruling thus suggested as a strong possibility that workers, frustrated by the lack of protection for a grievance they could not express internally, would get into further trouble if they took their complaint to the public in speeches, writings, or leaks to the press. So long as the employee was talking about his or her "official responsibilities," going public may not be a risk-free alternative, it appears.

The dissenters, in fact, may have understated this potential. Justice David H. Souter, in the principal dissenting opinion, said the majority had conceded "some First Amendment protection when a public employee repeats statements made pursuant to his duties but in a separate, public forum or in a letter to a newspaper." For that concession, however, the dissenters pointed to the page in the majority opinion where Kennedy had described some residual First Amendment protection, but where Kennedy expressly limited it to "public statements outside the course of performing their official duties."

The majority made a critical distinction between public employee speech related to official duties, and speech engaged in "as a citizen." A citizen can write a letter to the editor to register a protest about some public issue, but, it said, that has "no official significance." A public employee presumably could do so, too - except, it would appear, if the public employee´s complaint in public had "official significance."

The court stressed that Ceballos´ disputed memo did have such significance, and thus was not protected by the First Amendment. In his case, the court said, "the controlling factor...is that his expressions were made pursuant to his duties...Ceballos did not act as a citizen when he went about conducting his daily professional activities....In the same way, he did not speak as a citizen by writing a memo that addressed the proper disposition of a pending criminal case."

Because the court ruling was confined to the constitutional issue, it is limited to government employees, but it reaches them at all levels. Generally speaking the ruling would not apply to private employers because no statutory question was involved. However, if a private firm has a government contract, giving it a working relationship like that of an employee, the Court's new decision would appear to allow the government agency to restrict communications directly related to that role.

Lyle Denniston is a veteran Supreme Court reporter, having covered the highest court for 47 years. He thus has covered one out of every four Justices ever to sit on the Court. Denniston writes for Workforce Insights, an online resource about emerging labor trends and issueson Veritude.com.  Most recently with The Boston Globe, Denniston is now reporting on the Court for SCOTUSblog, a Web site devoted to news and information about the Court, and for the NPR Boston affiliate, WBUR.

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^©2006 Veritude, LLC.  Reprinted with permission.