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Garcetti v. Ceballos, 547 U.S. 410 (2006)

In February 2005 the United States Supreme Court granted certiorari in this case, which raises the legal issue of whether job-related speech of public employees should have First Amendment protection under the matters-of-public-concern test. The case involves a California deputy district attorney, Richard Ceballos, who suspected that a deputy sheriff had included false statements in a search warrant affidavit. Ceballos told his supervisors and the defense attorney in the case about his suspicions, and he claims he was demoted and transferred in retaliation for speaking out on a matter of public concern. He sued his supervisors, including Gil Garcetti. A lower court dismissed the claim, ruling that Ceballos’s speech was not protected by the First Amendment because it occurred in a memorandum to his supervisors as part of his job. An appeals court overturned that ruling and found that Ceballos’ speech was protected. While the case does not involve a faculty member, the legal issue raised may have significant implications for the academic speech of the professoriate. In its brief, which was written by The Thomas Jefferson Center for the Protection of Free Expression, the AAUP and the Center argued that if speech related to employment is not protected by the First Amendment, there could be deeply troubling implications for faculty academic speech at public institutions. Read the final amicus brief (pdf).

Update: On May 30, 2006, the Supreme Court reversed and remanded the Ninth Circuit’s holding in a 5-4 decision authored by Justice Kennedy.  The opinion held that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline,” regardless of whether the speech implicates matters of public concern.  The Court rejected the notion that the First Amendment requires the Court to balance the competing interests of a government employee and employer when the employee is “performing his or her job duties,” concluding that under those circumstances, the government’s interest in efficiency automatically outweighs the employee’s interest in free speech.  Because Ceballos made his statements as part of his official duties as a deputy district attorney, the Court held that the statements did not constitute protected speech, and Ceballos’ demotion and transfer therefore did not violate the law.

Fortunately, the Court recognized the concerns raised by AAUP that such an approach to public employee speech could be read as an impingement on academic freedom. Responding to Justice Souter’s dissent, in which he commented that “I have to hope that today’s majority does not mean to imperil First Amendment protection of academic freedom in public colleges and universities, whose teachers necessarily speak and write ‘pursuant to official duties,’” Justice Kennedy 's majority opinion observed that “there is some argument that expression related to academic scholarship or classroom instruction implicates additional constitutional interests that are not fully accounted for by this Court’s customary employee-speech jurisprudence.”  He therefore concluded that “we need not, and for that reason do not, decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching.”  Read the decision (pdf).