On The Job

Episode Notes

Transcript

Make No Law: The First Amendment Podcast

On The Job

02/14/2018

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Ken White: Most Americans understand that the First Amendment protects their free speech from the government.

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The government can’t put you in jail for what you say. The courts can’t award a judgment against you for protected speech, but what about private parties? Well, that’s something else. As every kid finds out, you don’t have a First Amendment right to mouth off at your parents. There’s no free speech doctrine to protect you if your significant other dumps you over something stupid you said, and your boss, she can fire you for yelling at her at work. But what if your boss is the government, what then? Is your speech protected, like a citizen speaking out to the state or unprotected, like an employee speaking out to an employer?

Richard Ceballos is a Deputy District Attorney in Los Angeles County and as he found out when he reported police misconduct to his superiors, it’s complicated.

Richard Ceballos: Supreme Court was not concerned whether or not I did the right thing, it was procedural, it was all procedural. It was like, well, regardless of whether you did the right thing or not; we just don’t think you are protected because you are a government employee speaking within the course and scope of your employment and therefore you are speaking for the government and the government does not have a First Amendment right. They had nothing to do with whether or not I was doing the right thing.

Ken White: Richard Ceballos discovered a paradox of how First Amendment law applies to government employees. If you are not talking about work, then your speech is protected, but if you are talking about work, your speech is not protected.

Confused? Maybe that will make more sense by the end of the episode.

I am Ken White and this is Make No Law: The First Amendment Podcast from Popehat.com brought to you on the Legal Talk Network. This is Episode 3: On The Job.

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Ken White: In 2000, Deputy District Attorney Richard Ceballos worked as a Calendar Deputy in a courtroom in Pomona, northeast of Los Angeles. As a Calendar Deputy he supervised more junior deputy district attorneys working in that courtroom.

One day a defense attorney on one of the cases he was supervising asked him to look into a search warrant the Los Angeles County Sheriffs obtained on the attorney’s client. The attorney thought that the warrant was based on lies. Ceballos took it very seriously.

Richard Ceballos: Yeah, after consulting with the defense attorney I retrieved the file back from the deputy, reviewed the search warrant, actually visited the crime scene, I looked at some other documents and evidence that the defense attorney gave to me, spoke to the detective that actually wrote the warrant and then came to the conclusion that there were some serious issues with the warrant.

Ken White: Richards Ceballos thought that this information was alarming enough to report to his superiors, so he took it to them.

Female Speaker: It’s open.

Richard Ceballos: Then I took my concerns to my superiors and advised them that, you know, I thought the warrant had been fabricated or grossly misrepresented.

Ken White: When you went to your supervisors like that, were you worried about what the consequences to you might be?

Richard Ceballos: No, not at all.

Ken White: He should have been worried. The first signs of trouble came when the Sheriffs found out about his concerns.

(00:04:46)

Richard Ceballos: They quickly demanded that I be removed from the case. They declared me to be a defense attorney or I think the words of the lieutenant, I was acting like a public defender and that I needed to be removed from the case, someone else had to be reassigned, because they had concerns that the case would be dismissed, that they would be subject to a lawsuit by the defendant.

Ken White: Ceballos’ superiors decided to move forward with the case. The defense attorney filed a motion to suppress the search and subpoenaed Ceballos to testify. That led to more friction when Ceballos tried to convince his supervisor that the memo he prepared about the search should be turned over to the defense.

Richard Ceballos: I advised her that the memo that I had prepared was actually Brady evidence since it contained potentially exculpatory evidence including statements by the detective and that it needed to be turn over to the defense prior to any motion. And she instructed me that I needed to change it, which I refused to do.

Ken White: She wanted you to change it to make it less critical or more stating the Sheriff’s position?

Richard Ceballos: Yes, yeah, to put it my way, yes.

Ken White: At the hearing the judge dramatically limited the scope of Ceballos’ testimony and denied the motion to suppress the search. Soon after that the retaliation started.

Richard Ceballos: But then after the motion, that’s when I was subjected to what we call Freeway Therapy and I was transferred to another office location further away from my home.

Ken White: I have heard that term before from cops too, what is Freeway Therapy?

Richard Ceballos: Freeway Therapy is basically the office way of punishing a prosecutor or any employee for that matter by making them drive much further away from where they are normally assigned or would be normally assigned. And so you are going to spend an hour or two on the freeway and this is a form of therapy.

Ken White: Freeway Therapy wasn’t Ceballos’ only option. The District Attorney’s office without explanation or justification gave him a choice, he could turn his 15-minute commute into an hour commute and drive to the DA’s office in El Monte, California or he can stay in Pomona, but be demoted from handling felonies to handling misdemeanors, like a rookie.

Ceballos was also denied the promotion to Grade 4 Deputy District Attorney he was due for. He didn’t get that promotion for four years until after a new District Attorney took office. But Richard Ceballos was stoic. He probably wouldn’t have sued, but for what happened next.

Richard Ceballos: I started getting prank phone calls at my home, my house was vandalized by graffiti, my car was shot up with BB guns or a pallet mark. And I think the one — the real incident that kind of turned me and said I have got to do something is I was followed one evening by about three sheriffs’ cars as I was leaving the gym, and they were just tailgating me from about a quarter mile with their lights off as I drove down the street. And they were positioning themselves in such a way to affect a traffic stop on me, and I just said, oh, they are going to pull me over and they are going to do something.

Ken White: And so Richard Ceballos sued the District Attorney’s Office in the person of Gil Garcetti, who was then the District Attorney. He sued on the theory that by retaliating against him for reporting and speaking up about misconduct, the office violated his First Amendment rights to free speech and to petition the government.

Ceballos wasn’t breaking new ground here. In 2000, when he sued there was already law in his favor. Since 1968 the Supreme Court had held that public employees have some protections from retaliation against their speech.

The Supreme Court first came to that conclusion evaluating the case of an Illinois school teacher named Marvin L. Pickering. Mr. Pickering wrote a letter to the editor of a local newspaper criticizing how the school board spent the money it got from taxes.

Marvin L. Pickering: As I see it, the bond issue is a fight between the Board of Education that is trying to push tax-supported athletics down our throats with education and a public that has mixed emotions about both of these items, because they feel they are already paying enough taxes and simply don’t know whom to trust with any more tax money. I must sign this letter as a citizen, taxpayer and voter, not as a teacher, since that freedom has been taken from the teachers by the administration. Do you really know what goes on behind those stone walls at the high school? Respectfully, Marvin L. Pickering.

(00:10:07)

Ken White: Mr. Pickering was fired for his trouble. He sued and took his case all the way to the Supreme Court, which held that the dismissal violated his First Amendment rights. The Supreme Court didn’t say that all public employee’s speech is protected, just some of it, based on a rather vague balancing test.

Here’s what Justice Marshall wrote for the court.

Justice Marshall: In sum, we hold that, in a case such as this, absent proof of false statements knowingly or recklessly made by him, a teacher’s exercise of his right to speak on issues of public importance may not furnish the basis for his dismissal from public employment.

At the same time it cannot be gainsaid that the State has interests 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 interests 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 efficiency of the public services it performs through its employees.

Ken White: That standard didn’t give too much guidance to public employers or to courts. The Supreme Court clarified it a bit in 1983 in a case called Connick v. Myers. Sheila Myers, like Richard Ceballos, was a Deputy District Attorney working for District Attorney Harry Connick, the father of singer Harry Connick, Jr. Myers was unhappy about a transfer and circulated a questionnaire soliciting from her colleagues their views on how the office was being run. She was fired. This time, the Supreme Court said that the speech wasn’t protected because it wasn’t on an issue of public interest. Here’s what Justice White wrote.

Justice White: Myers’ questionnaire touched upon matters of public concern in only a most limited sense; her survey, in our view, is most accurately characterized as an employee grievance concerning internal office policy. The limited First Amendment interest involved here does not require that Connick tolerate action which he reasonably believed would disrupt the office, undermine his authority, and destroy close working relationships. Myers’ discharge therefore did not offend the First Amendment.

Ken White: So that was the law when Richard Ceballos sued, claiming that his First Amendment rights were being violated by the District Attorney’s office’s retaliation against him for voicing his concerns about that search warrant.

The test, the so-called Pickering Myers’ Test named after those two cases has two parts. In the first part of the test a court asks if the speech in question was made by the employee as a citizen on a matter of public interest. If it wasn’t, if the speech was just on some internal office issue then it’s not protected.

In the second part of the test the court balances the speaker’s interest in their free speech against the employer’s interest in promoting the efficiency and harmony of the workplace.

So, Richard Ceballos thought he had a strong case. His complaint to his superiors, his memo about his conclusions that the search warrant was based on false testimony was quintessential public interest. The public has a very strong interest in police misconduct and in the conduct of criminal cases. But not so fast, the District Attorney’s office had an argument. They said that the test asks whether you spoke as a citizen on an issue of public interest, and Ceballos didn’t. Ceballos spoke as a Deputy District Attorney doing his job.

The Trial Court agreed and granted summary judgment to the District Attorney’s office saying that Richard Ceballos’ speech was not entitled to constitutional protection because it was part of his job.

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The United States Court of Appeals for the Ninth Circuit reversed and the Supreme Court agreed to review the case. The court was clearly troubled by the conflict here, between a public employee’s right to speak and the need to expose government wrongdoing on the one hand and the government’s need to run orderly workplaces and not have every workplace dispute turn into a lawsuit on the other hand.

Justice Breyer expressed that conflict at one of the two oral arguments the court held.

(00:15:02)

Bonnie Robin-Vergeer: The Courts have not usually taken idle gossip to meet that test.

Justice Breyer: We live in a world where people are leaking things all the time and there are thousands of things that are in the public interest every day, but what’s bothering me is while I see the government’s rule as protecting the interest of the employer, it’s very hard for me to believe that never is there any incidence where the First Amendment offers protection, but the only choice you have given me is a rule that says every dispute of the public interest is going to go right into constitutional litigation, and I don’t like that either.

Ken White: Other justices pointed out that the rule the District Attorney was arguing that speech is unprotected when it’s part of your job, would have perverse consequences for some types of public employees like State College professors. Listen to Chief Justice Roberts, getting counsel to admit to just that weird result.

Chief Justice Roberts: What do you do with a Public University professor who is fired for their content of his lectures but certainly in the course of his employment that’s what he’s paid to do that has no First Amendment protection?

Female Speaker: Well, it would be our view that if the signed job duties of that University professor was to speak on a particular topic or content and they were getting paid for doing that, then that is a job required speech and it is should not be entitled presumptively to First Amendment protection.

Ken White: Ultimately, the argument about practicality won and in 2006 the Supreme Court decided six to three that Richard Ceballos’ speech was not protected because he said it as part of his job. Here’s Justice Kennedy writing for the Court.

Justice Kennedy: Ceballos did not act as a citizen when he went about conducting his daily professional activities, such as supervising attorneys, investigating charges, and preparing filings. 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. When he went to work and performed the tasks he was paid to perform, Ceballos acted as a government employee. The fact that his duties sometimes required him to speak or write does not mean his supervisors were prohibited from evaluating his performance.

Ken White: What swayed the Court was the prospect of millions of government employees reacting to every disciplinary decision by asserting that they were being punished for protected speech.

Justice Kennedy: Ceballos’ proposed contrary rule, adopted by the Court of Appeals, would commit state and federal courts to a new, permanent, and intrusive role, mandating judicial oversight of communications between and among government employees and their superiors in the course of official business. This displacement of managerial discretion by judicial supervision finds no support in our precedents. When an employee speaks as a citizen addressing a matter of public concern, the First Amendment requires a delicate balancing of competing interests, surrounding the speech and its consequences. When, however, the employee is simply performing his or her job duties, there is no warrant for a similar degree of scrutiny. To hold otherwise would be to demand permanent judicial intervention in the conduct of governmental operations to a degree inconsistent with sound principles of federalism and the separation of powers.

Ken White: The result is odd, it means that Ceballos might have been protected if he had gone to the newspapers with his conclusions, but because he went through proper channels, he was unprotected.

Frank LoMonte: The Supreme Court decision basically said you have got to be a good employee and honor your master that being your supervisor regardless of what you feel or what you believe is occurring in the office, even if you witness corruption, even if you witness abuse, malfeasance or waste of resources, you really cannot — the only way you are going to be provided protection by the First Amendment is to go public, but what do you risk if you go public? If you are disclosing confidential information that you gather within the course and scope for your employment, yeah, you will be protected by the First Amendment if you go public but you are not going to necessarily be protected from other employer sanctions for divulging that confidential information.

So, what do you do? Face with that or what are most employees going to do? Or just keep quiet?

(00:20:04)

Ken White: There are whistleblower laws that protect some government employees who expose misconduct and some courts have later narrowed the Garcetti v. Ceballos decision. For instance, the Ninth Circuit recently held that the rule didn’t apply to state college professors who could not be punished for their classroom speech based on ideological disagreements, even though that speech is part of their state job. But the result is still clear, after this case if you are a government employee and you want to report misconduct, you have to make a hard choice. Report it inside through proper channels and risk discipline for that unprotected speech or go outside and risk discipline for that.

Would you still today if you were asked tell another deputy to do what you did?

Richard Ceballos: I wouldn’t tell a deputy, I would tell them what their options are, I would tell them what the possible consequences are for acting and I would certainly encourage them to do the right thing but I won’t tell anyone what to do, because I don’t know what our office will do to them.

Ken White: In this series of podcasts I will be telling more stories behind important First Amendment decisions. If there’s a case you want to hear about or a First Amendment question you would like answered on the podcast, drop me a line at  HYPERLINK “mailto:[email protected]” [email protected].

Thanks for listening. You can find documents and cases mentioned on this podcast at  HYPERLINK “http://www.popehat.com” popehat.com or  HYPERLINK “http://www.legaltalknetwork.com” legaltalknetwork.com.

If you liked what you heard today, please remember to rate us in Apple podcasts and Google Play, and follow us on Twitter or Facebook.

Lastly, I would like to thank our participants, voice actors, producers, and audio engineers for their participation.

My guest, Richard Ceballos; Tom Mighell as Marvin Pickering; John Simek as Justice Thurgood Marshall; Gerard Marino as Justice Byron White; John Tallifer as Justice Anthony Kennedy; Producer Kate Nutting; Executive Producer Laurence Colletti, and last but not least, music, sound design editing and mixing by Adam Lockwood.

Excerpts from the oral argument in Garcetti v. Ceballos provided by Oyez, a free law project by Justia in the Legal Information Institute of Cornell Law School.

See you next time for Episode #4, ‘Disparagement, Contempt and Disrepute’.

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Simon Tam: They actually — it surprised me by jumping, they pushed me to the ground, they started kicking sand in my eye, started punching and kicking me, all the while yelling, jap and gook over-and-over again, and it wasn’t until I snapped, and I said, you know what, I am a chink; look, if you are going to be a racist, at least do it correctly.

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Outro: The views expressed by the participants of this program are their own and do not represent the views of nor are they endorsed by Popehat, Legal Talk Network or their respective officers, directors, employees, agents, representatives, shareholders, or subsidiaries. None of the content should be considered legal advice. As always, consult a lawyer, please.

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