High Court Considers L.A. Case on Free Speech

The Supreme Court took up the case of a Los Angeles County prosecutor Wednesday to decide whether the nation’s 21 million public employees have a 1st Amendment right to speak out about problems that arise on the job.

Most of the justices said they were not willing to create such a right, arguing that it could turn every workplace dispute into a federal court battle.

“You are advocating a sweeping rule,” Justice Anthony M. Kennedy told a lawyer for prosecutor Richard Ceballos. “The 1st Amendment isn’t about policing the workplace.”

In the past, the high court has said that teachers and other public employees have a right as citizens to speak in public on a “matter of public concern.” Under that ruling, the employees cannot be fired or punished by employers who are unhappy with what they said.

However, the justices have also said that government workers who speak out on internal workplace disputes are not protected by the 1st Amendment.

The case of Garcetti vs. Ceballos falls somewhere in between.

Five years ago, after news of the scandal in the Los Angeles Police Department’s Rampart Division, Ceballos was told that a sheriff’s deputy might have exaggerated evidence to obtain a search warrant in a drug case.

Ceballos, a deputy district attorney in Pomona, investigated the case on his own and wrote a memo accusing the officer of lying. A supervisor asked him to tone down the memo, but his second version also accused the officer of “clearly misleading” a magistrate.

Supervisors pressed ahead with the drug case nonetheless, and a judge upheld the search warrant despite the evidence turned up by Ceballos, which was disputed. After he was passed over for a promotion and transferred to another office, Ceballos sued Los Angeles County and then-Dist. Atty. Gil Garcetti, alleging that his 1st Amendment right to free speech was violated when he was punished for acting as a whistle-blower.

In 2002, a federal judge threw out his lawsuit, saying on-the-job memos were not protected by the 1st Amendment. Last year, the U.S. 9th Circuit Court of Appeals revived his suit, saying whistle-blowers who disclosed police misconduct should be protected.

The suit has not gone to trial, and the Supreme Court took it up to clarify the legal rights of public employees.

During Wednesday’s arguments, lawyers for Los Angeles County and the Bush administration urged the court to throw out the lawsuit and to rule that on-the-job speech is not protected by the Constitution.

Cindy S. Lee, a Glendale lawyer representing the county, described the memos written by Ceballos as examples of “job-required speech. The employee is getting paid for that duty,” she said. “Our view is that job-required speech should not be protected by the 1st Amendment.”

What about a public university professor who is fired for giving a controversial lecture? asked Chief Justice John G. Roberts Jr.

Lee responded that the lectures were part of the professor’s job.

“So that has no 1st Amendment protection?” Roberts asked.

Lee did not budge from her position. If the court rules for Ceballos, she said, it will “plant the seed of a constitutional claim for virtually every public employee” who has a dispute with his or her employer.

The National School Boards Assn., the National League of Cities and other government groups urged the court to rule for the county.

But schoolteachers, college professors, the California Prosecutors Assn. and the American Civil Liberties Union urged the court to uphold the free-speech rights of public employees. They said that in many situations, the current whistle-blower laws did not protect employees.

“In an era of increased government secrecy, it is critical that we protect the 1st Amendment right of government employees to expose government wrongdoing, both to their supervisors and to the public at large,” ACLU legal director Steven Shapiro said in a statement.

Bonnie Robin-Vergeer, a Public Citizen lawyer who represented Ceballos in oral arguments, said public employees should be protected by the Constitution for “expressions on a matter of public importance.”

Kennedy took issue with that approach. “Any comment about problems in a government office is a matter of public concern,” he said.

“I would guess my law clerks could meet [that standard] every day,” added Justice Stephen G. Breyer. He and other members of the court wondered whether their law clerks would have a free-speech right to air complaints about how the office was run.

Justice Ruth Bader Ginsburg worried that “personal gripes” could become the basis for lawsuits. Justice David H. Souter also voiced concern that ruling for Ceballos could “potentially mean every case gets” a court hearing.

By the hour’s end, it sounded as though most of the justices would insist on a ruling that narrowly limited the rights of public employees to sue for work-related problems.

A decision on the case is likely in several months.