The trouble with whistle-blowers is that for every Colleen Rowley there are 5 million insubordinate kvetches. The question for the Supreme Court today in Garcetti v. Ceballos is whether the law should reward the Rowleys or the kvetches.
In 2000, Los Angeles County Deputy District Attorney Richard Ceballos worried that a police officer had perjured himself to obtain a search warrant. He urged his bosses to throw out the criminal charges resulting from the search, and his bosses asked him to tone down language in his memo suggesting the affidavit in support of the warrant was “grossly inaccurate.” After Ceballos told the defense attorney of his doubts about the warrant, he was subpoenaed to testify on behalf of the defendant.
Ceballos claims he suffered retaliatory treatment by his supervisors as a result and sued in federal court, claiming that his First Amendment rights had been violated. He lost on summary judgment in the district court. The 9th Circuit Court of Appeals, in another 9th Circuit shocker, reversed. The panel felt that Ceballos had important gripes of major public concern that do not evaporate simply because he’s an employee working on the job when he speaks. This case falls between the cracks of two important precedents in this area, the 1968 case of Pickering v. Board of Education and Connick (Harry’s dad!) v. Myersfrom 1983.
Cindy Lee represents Ceballos’ supervisors this morning, and her argument (she’ll make it many, many times) is that the 9th Circuit’s per se constitutional rule would effectively turn every single disgruntled employee’s insubordination into a massive First Amendment fight. Lee doesn’t always answer the question as it’s posed the first time, which has the effect of annoying the justices, particularly Justice Sandra Day O’Connor, who is still on the bench out of the goodness of her heart, and who is not generally fond of repeating herself anyhow. When Lee fails to answer, for a third time, her question about whether the proper application of Pickering would have resulted in a victory for her side, O’Connor practically hollers: “COULD IT???”
Lee articulates the standard she wants: “If it’s job-required speech, the employer should inevitably win.”
Chief Justice John Roberts (and no, I may never get used to writing these words) asks what happens when a professor at a public university speaks out of turn; Lee’s answer is the same: He should not presumptively be entitled to First Amendment protection.
Justice Antonin Scalia asks whether Ceballos’ speech here was a lie. Lee says it was “inaccurate.” Justice David Souter asks how we can possibly know it was inaccurate if this case never went to trial. Lee says the judge in the criminal case found him wrong. “If my ethical record said I lied every time I made an inaccurate prediction about what a judge would do when I was a young lawyer, I’d have had a very short legal career,” muses Souter.
Lee tells the court there is no need to do the complicated balancing test laid out in the prior cases because Ceballos’ speech was purely job-related and not citizen-speech. Justice John Paul Stevens wonders how it can be that Ceballos’ speech is less protected when he complains properly to his employers than if he ratted them out to the Los Angeles Times.
Dan Himmelfarb is an assistant to the solicitor general, and he gets 10 minutes to argue on behalf of the supervisors. He agrees with Lee that speech made purely in one’s capacity as an employee (here, just in the memo) is simply not subject to a balancing test because it’s just not protected. O’Connor wonders about whistle-blowers. Himmelfarb says there are other remedies for unfair retaliation. According to Himmelfarb, Ceballos was simply insubordinate: Reasonable minds could differ about whether there was police misconduct in obtaining the warrant. Ceballos ain’t no hero. He’s a whiner.
Bonnie Robin-Vergeer represents the whistle-blower/kvetch Ceballos. She makes the mistake of overstating the holding in Pickering in her opening sentence, and Justices Anthony Kennedy and Scalia stage a footrace to see who gets to tear her face off first. Kennedy wins. “I’m not at all clear that’s what this court decided in Pickering,” he snaps. He asks whether she thinks there is any type of disgruntled employee speech that is unprotected. She replies that, under the Pickering balancing test, courts will generally defer to employers.
Robin-Vergeer emphasizes that the speech here implicated government misconduct, which is of “paramount importance.” Kennedy is unpersuaded: “The consequence of your view is that the First Amendment will be used for courts to monitor every conversation in every agency in every government in the United States.” He calls that a “sweeping rule.” I call it hell.
And herein lies the problem: It’s quite clear that a bright-line rule for the employees or for the employers is fraught with trouble. An extreme version of either rule will either destroy employer authority or chill important speech from whistle-blowers. Cue Justice Stephen Breyer in his bat cape, aka Moderate Man. The rest of the morning is given over to his relentless efforts to find a middle way.
He describes a “hypothetical,” which is, in fact, the case. He ends his query with, “That’s my hypothetical, which is very much like the case.” People chuckle. Robin-Vergeer begins to answer, and Breyer does what I’ve come to think of as his biblical hand wave. It’s his way of saying: “Feh! You have failed me! You must be stoned outside the village gates.”
Robin-Vergeer rejects her opponents’ distinction between employment-related speech made as part of one’s employment and employment-related speech made as a private citizen. To her the relevant inquiry is whether the matter is of important public concern: “Imagine an employee at FEMA,” she posits, “who says they are unprepared for the next hurricane.” If they are fired because supervisors don’t want to hear that, it hardly matters whether they are speaking as part of their job or to the Los Angeles Times.
Scalia wants to know her definition of “public concern.” She says it should have legitimate news value. “So, this is a press test,” he smirks. “I thought this was about the welfare of the public, not the press.” He wonders whether scurrilous lies about the mayor’s wife running around warrant similar First Amendment protection just because newspapers would be interested.
Breyer takes another stab at being the good cop: He says that he sees the need to protect employers as well as employees: “Am I hopelessly forced to choose the lesser of two evils? Isn’t there some middle approach?”
Roberts offers the following hypo: “If I get a memo from a law clerk saying Justice So-and-So’s jurisprudence is wacky, and I fire him,” does he have a claim that this matter is of public concern since it applies to the way courts decide cases and reflects government misconduct?
Scalia is delighted to have a new straight man: “Nobody is wacky here,” he assures his new colleague. Surly, sometimes. Sleepy, often. But not wacky.
Robin-Vergeer says judicial wackiness is not a serious allegation. She attempts to answer Breyer’s question about a possible middle way, but Scalia interrupts: “The answer to Justice Breyer’s question is: The way to have the bad cases fall on the bad side of the law and the good cases fall on the good side” is to adjudicate every last one in court. “That,” he concludes, “will give you the perfection of the First Amendment.” It will cost money. And take time and resources. But the result will be perfect. Now, go back and read that sentence in your Super Sarcastic Voice, because that’s how he said it.
Breyer grants that she has taken him “part of the way” if there is an “independent constitutional basis for the speech” but wonders if the test could be: The employer has broad discretion, but the discretion can be abused and it’s up to judges to decide. Even Souter concedes that means a lot of court time for the kvetches.
Lee makes her big point again in her rebuttal: “This case is about whether public employees have the constitutional right to perform their duties to the dissatisfaction of their employer.”
Well, now, that doesn’t sound good at all.
It’s hard to count a majority for Ceballos’ position. How can there be? It’s totally unworkable unless you block out 23 hours a day on every court docket in the country to litigate these claims. But if Ceballos had been the guy complaining about the LAPD Rampart Division scandal, and he got canned for it, this case would have had a kinder hearing this morning.