Do-over: High court re-hears whistleblower case

Wednesday, March 22, 2006

WASHINGTON — Supreme Court Justice Samuel Alito seemed fully aware yesterday that oral arguments in the First Amendment case of Garcetti v. Ceballos were being repeated just for him.

Alito asked more questions than he has in any other case, it appeared, though it was difficult to discern which way he was leaning. The rest of the Court, though, seemed ready to rule against the First Amendment claim in the public-employee speech case.

The Garcetti dispute was first argued last fall, before Alito replaced Justice Sandra Day O’Connor in January. When the justices ordered the case reargued, the reason appeared to be that the Court was deadlocked 4-4 without O’Connor, and Alito’s vote would be needed, one way or the other.

But the tenor of the arguments, even setting aside Alito’s questions, seemed to favor the government’s contention that the First Amendment should not protect public employees who express views during the course of their duties. In a long line of cases the justices have given public workers some protection if they speak out as citizens on matters of public concern. But the justices have struggled over how to handle speech of public importance by employees doing their job.

In the case before the Court, Los Angeles deputy district attorney Richard Ceballos told defense lawyers in a 2000 case that a deputy sheriff had lied to obtain a search warrant in the case. Though he was not prevented from testifying about the improper conduct, Ceballos claimed he was demoted and punished with “freeway therapy” by being assigned to a remote office with a long commute. The 9th U.S. Circuit Court of Appeals ruled that Ceballos deserved First Amendment protection, because his speech, which amounted to whistle-blowing about government misconduct, was about a matter of public concern.

In several questions Alito seemed concerned that if the 9th Circuit ruling were upheld, the First Amendment would be invoked to protect employee speech that was “ham-handed or not discreet” or an employee who was disciplined for genuinely poor performance. At another point he asked how to determine if an employee’s speech falls outside his or her job duties. And what if an employer tells an employee to lie, Alito also asked.

Cindy Lee, the lawyer for Los Angeles, said adequate civil service remedies, as well as lawyer discipline rules, could protect the employee and punish the wrongdoer — without needing the First Amendment. “The First Amendment is not about policing the workplace,” she said.

Edwin Kneedler, a deputy U.S. solicitor general arguing on the same side as Los Angeles also warned of a “huge problem” ahead if employees can invoke the First Amendment to “constitutionalize day-to-day workplace relationships.” He added that the government has “an absolute right” to control its workplace.

Among the justices, Anthony Kennedy seemed the most sympathetic to the First Amendment argument when he suggested that “the public might have an interest” in the dispute between Ceballos and his supervisors. But Justice Stephen Breyer seemed inclined to go in the other direction, expressing concern that it would be “disruptive” to have “a constitutional judge dive in” to ordinary workplace disputes.

And when Bonnie Robin-Vergeer, the lawyer for Ceballos, argued that overturning the 9th Circuit would “stifle speech at the core” of the First Amendment, Chief Justice John Roberts replied, “It’s a bit much to say that an internal matter … is at the core of the First Amendment.” Justices also seemed unconvinced when Robin-Vergeer argued that without First Amendment protection, employees like Ceballos are “just not protected.”

Said Breyer, “He has a lot of remedies.”

Justice Antonin Scalia was also incredulous. “You need the First Amendment to protect you?” he asked, noting that public-employee unions are “the strongest unions left” and can adequately protect public employees’ rights.

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