30 May 2006

The Government's Muzzle

Today's Supreme Court decision in Garcetti v. Ceballos, No. 04–473 (PDF) (5 {Kennedy} — 4), has some disturbing implications for government whistleblowers.

A supervising deputy district attorney criticized the foundation for a warrant, and testified at trial concerning those criticisms. Naturally enough, his supervisors were displeased; Ceballos sued on the ground that a reassignment, transfer to another courthouse, and denial of promotion constituted retaliation. After the usual denials and assertions that these were "routine employment actions"—it's certainly routine to move troublemakers around so they don't get comfortable, so I suppose this passes the laugh test—the county also asserted that Ceballos's memo was not protected speech. The Supreme Court expressed the question in extremely broad and abstract terms:

[Does] the First Amendment protect[] a government employee from discipline based on speech made pursuant to the employee's official duties[?]

This isn't the right question for this set of facts; there is one critical fact not encompassed here—the one that, in all probability, actually made a difference. Critical memos are fairly routine; critical memos that express professional differences and get exchanged with other departments are common, if not routine. What strikes me as the critical fact in this case is that it wasn't just an internal memo. Ceballos repeated his conclusions at trial, and it appears from the statement of facts in the opinion that any potentially retaliatory actions took place after that testimony, or at least after designation of Ceballos as a witness by defense counsel. Thus, the question should have been something like:

Does the First Amendment protect a government employee from retaliation based in part on compelled judicial testimony concerning other speech made pursuant to the employee's official duties?

In a sense, it's appropriate for the Court to answer the question it did; it's a not completely resolved question, and I'm no fan of the harshest versions of the advisory opinion doctrine (nor of narrow visions of "case or controversy"). However, the facts of this case will result in confused application to future matters, and the context of the "speech" (performance of a supervisory duty requiring exercise of professional judgment) makes this overreaching even less satisfactory.

At least it wasn't decided on a motion to dismiss, but after at least some factual inquiry and a motion for summary judgment. The Court's holding would have been much more dangerous on the basis of "there exists no set of facts consistent with the complaint that would allow relief." Although this is not formally a "whistleblower" case, I can almost hear the thunderous applause from those attorneys who defend government treatment of whistleblowers (making no judgment on whether such treatment is either justified or retaliatory).

We hold 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.

Slip op. at 9. This holding goes far, far beyond the apparent facts of this case. The particular language used is rather disturbing—"not speaking as citizens for First Amendment purposes"—and overbroad. The real problem, though, is buried just before that. What constitutes an employee's official duties? It's more than arguable—indeed, for military officers, it's a well-founded principle of military law—that when one observes unlawful action, one has a duty to report it to superiors. Cf. Uniform Code of Military Justice Art. 134 ¶ 95, printed in Manual for Courts-Martial IV–116 (2005).1 So, then, doesn't any report of unlawful action potentially fall within "official duties"? Although the Court tries to reserve this inquiry (slip op. at 15; cf. Justice Souter's dissent at 4 n.2), the reservation is insufficient… particularly when the "duty" involved is a contingent one that does not (or, for this hypothetical, hopefully does not) occur on a routine basis. Cf. Justice Souter's dissent at 6–7.

  1. At least one military lawyer, perhaps back at the dawn of the 1968 MCM, had a sense of humor. The offense of "unlawful cohabitation" is Art. 134 ¶ 69.