Public Employees, Whistleblowers and the First Amendment

Does the First Amendment protect a civil servant who makes job-related statements in accordance with his or her employment responsibilities that happen to reveal internal wrongdoings and are a matter of public concern? In March 2006, on reargument in Garcetti v. Ceballos, the U.S. Supreme Court was asked to determine the breadth of the First Amendment as it relates to speech that would be a routine part of a public employee's employment. 

In the case at hand, Richard Ceballos was a deputy district attorney in Los Angeles, Calif. During the course of his employment, Ceballos received a complaint from a defense attorney who alleged the misconduct of a local sheriff. Upon investigation, Ceballos found that the sheriff substantially misrepresented facts to obtain a search warrant in a theft case. Ceballos wrote a memo to his supervisors reporting his findings. They told him to make his findings less accusatory so he did so in a subsequent memo. Nonetheless, the prosecutor's office decided to continue with the case. Ceballos informed the defense attorney about his findings and was then subpoenaed to testify at a hearing to dismiss the case. Subsequently, Ceballos was assigned to a remote office for "freeway therapy" (his term for his long commute) and denied a promotion.

Ceballos challenged his employer's retaliation for speaking under his First Amendment rights by filing suit in federal court. He lost in district court, but the court of appeals reversed and remanded the decision and found that "the law was clearly established that Ceballos' speech addressed a matter of public concern and that his interest in the speech outweighed the public employer's interest in avoiding inefficiency and disruption."² The matter went to the Supreme Court chambers. The high court was expected to render its decision in late June after this magazine went to press.

Neither Pickering's nor Ceballos' remarks unveiled fraud. Nonetheless, the court's decision in Garcetti v. Ceballos will set the legal standard for applying First Amendment protection to whistle-blower cases involving civil servants including those that expose fraud. Here we'll briefly review the issues in Garcetti v. Ceballos and provide some case precedents to reflect the current state of the law on this issue.

As mentioned above, Pickering prevailed under his First Amendment claim because his communication was independent of his responsibilities as a teacher and because the court found that his constitutional rights trumped those of his employer's interest in having an efficient work environment. The Supreme Court's holding in Pickering v. Board of Education provided lower courts with a standard for determining when the government's interest in an efficient workplace overrides the speech of its employees; this became known as the Pickering test.

The Pickering test first asks whether the speech in question addresses an issue of public concern. If an issue of public concern is found, then the court will balance (a) the employee's interest, as a citizen, in voicing matters of public concern, against (b) the employer's interest in promoting an efficient workplace environment via its employees. The Supreme Court in Connick v. Myers further narrowed the scope of the test by requiring the issue of "public concern" to be one in which the employee speaks "as a citizen upon matters of public concern" rather than "as an employee upon matters of only personal interest."³ 

In Ceballos' case, the fact that he disclosed police misconduct is clearly a matter of public concern. Unlike Pickering, however, Ceballos spoke as an employee, pursuant to his professional duties rather than as a citizen. Thus, the Supreme Court is debating whether a civil servant who speaks of matters of public concern per his job requirements is protected under the First Amendment.

Ceballos maintains that the U.S. Supreme Court precedents have never held that speech meriting public concern by a civil servant in his or her role as such is unprotected under the First Amendment.

[S]o long as the employee is speaking on a matter of public concern and her interest in speaking is not outweighed by her employer's interest in the efficient performance of its public mission ... expression by public employees is constitutionally protected when they speak as employees.⁴ 

Petitioner opponents, however, argue that the court in Connick emphasized the difference between speech in one's employment capacity and speech as a citizen. "[R]epeated emphasis in Pickering on the right of a public employee 'as a citizen, in commenting upon matters of public concern,' was not accidental."⁵ Justice Roberts seemed to agree with Petitioner on this point: "As Justice Holmes said, you know, you might have a right to speak, but you don't have the right to be a policeman. So, as the 'as a citizen' part didn't come out of happenstance."⁶ 

Ceballos also claims that First Amendment protection of public employees who speak on matters of public concern as part of their jobs won't "hamstring public agencies in performing their public missions."⁷ In explaining his position, Ceballos asserts that civil servants will stop reporting wrongdoings in the workplace out of fear of retaliation if they communicate such information as part of their jobs.

In opposition, Petitioner contends that such broad protection by the First Amendment over public employees will be unduly burdensome because government employers will shy away from making important employment decisions relating to sub-par employees. Furthermore, they state:

The productivity and efficiency of government offices - the operations of which are funded by taxpayer dollars - will be placed in unnecessary jeopardy if government employers are forced to face the prospect of expensive and complicated First Amendment litigation whenever they contemplate taking what they believe to be legitimate employment actions against incompetent and unproductive employees.⁸ 

The Supreme Court seems to sway in favor of the Petitioners. The justices placed heavy emphasis on the availability of whistle-blower remedies independent of protection under the First Amendment such as state whistle-blower statute and public employee union protection. What is left to be decided is the fate of First Amendment protection of civil servants who blow the whistle under job-related requirements.

As we were going to press, we learned that the Supreme Court ruled in favor of the government in a 5-4 vote. Writing for the majority, Justice Kennedy stated that the First Amendment doesn't protect "every statement a public employee makes in the course of doing his or her job," and that government workers "retain the prospect of constitutional protection for their contributions to the civil discourse." Thus, public employees must satisfy the Pickering/Connick test as citizens, independent of the course of doing their jobs.

1. Pickering v. Board of Education, 391 U.S. 563 (1968). 
2. Ceballos v. Garcetti, 361 F.3d 1168, 1170 (2004). 
3. Connick v. Myers, 461 U.S. 138 (1983). 
4. Garcetti v. Ceballos, Brief for Respondent, On Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit (July 2005). 
5. Connick v. Myers, 461 U.S. 138, 143 (1983) as cited in Petitioners' Brief, On Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit (July 2005). 
6. Garcetti v. Ceballos, Chief Justice Roberts in Transcript in the Supreme Court of the United States, 53 (March 21, 2006). 
7. Id. at FN 4, p. 41. 
8. Garcetti v. Ceballos, Petitioners' Brief on the Merits, On Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit, 39 (July 2005). 

Juliana Morehead, J.D., CFE, is a legal writer and editor for the ACFE.