Limit to protection
The following editorial appeared in the Chicago Tribune on Wednesday.
If you work in the private sector, the government can’t punish you for publicly disagreeing with your boss: That would violate your free-speech rights. Your boss, however, can penalize you for doing that. But suppose both you and your boss are public employees. Can the government, in the form of your supervisor, penalize you as a private boss could? Or does the First Amendment give you far broader protection than a private employee gets?
That was the question addressed by the Supreme Court, in a case widely billed as a test of whistle-blower rights. The court ruled that not every disagreement between a public employee and his superiors is a constitutional matter.
The case arose after Richard Ceballos, a deputy district attorney in Los Angeles County, discovered what he believed were inaccuracies in an affidavit police had filed to get a search warrant. He wrote a memo to his boss urging the district attorney to drop the case. When his superiors refused, he informed defense lawyers of his complaints and testified against the prosecution in a hearing. The trial court rejected Ceballos’ view and let the case proceed.
At that point, Ceballos says he was demoted and transferred. He sued, arguing that his supervisors had violated his free-speech rights by punishing him for blowing the whistle on police misconduct. In his view, his situation resembled that of a public schoolteacher discharged for writing a letter to a newspaper – whose firing was overruled by the Supreme Court. A federal appeals court agreed with Ceballos.
But last week the Supreme Court wisely ruled against him, declaring: “Our precedents do not support the existence of a constitutional cause of action behind every statement a public employee makes in the course of doing his or her job.” Though the teacher was participating in a public debate as a citizen, it said, Ceballos made his comments while carrying out his duties as an employee. The former enjoys First Amendment protection; the latter doesn’t.
Managing a workplace sometimes requires disciplinary measures based on things an employee says. “Supervisors must ensure that their employees’ official communications are accurate, demonstrate sound judgment, and promote the employer’s mission,” wrote Justice Anthony Kennedy. “If Ceballos’ superiors thought his memo was inflammatory or misguided, they had the authority to take corrective action.”
Had he spoken out in a public forum, he might have been protected. But to extend the First Amendment to internal disputes, said Kennedy, “would commit the 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.”
In a nation with 22 million public employees that role would swamp the courts and invite chaos in every government workplace. It would also damage the First Amendment by loading onto it far more than it was meant to carry.