• U.S. Supreme Court Narrows Public Employees' Free Speech Rights
  • June 2, 2006 | Authors: Beverly Hall Burns; Leigh R. Greden
  • Law Firms: Miller, Canfield, Paddock and Stone, P.L.C. - Detroit Office; Miller, Canfield, Paddock and Stone, P.L.C. - Ann Arbor Office
  • The U.S. Supreme Court ruled yesterday that a government employee has no free speech protection when speaking in the course of his or her job, leaving public employers free to discipline employees without fear that doing so will violate the First Amendment. The 5-4 decision in the case of Garcetti vs. Ceballos may be welcomed by public sector employers in this regard, but the decision has its limitations as well.


    Plaintiff Richard Ceballos, acting in his capacity as a deputy district attorney in Los Angeles, took a phone call from a criminal defense attorney regarding alleged inaccuracies in an affidavit used to obtain a criminal search warrant. Ceballos investigated, determined the affidavit contained inaccuracies, and consequently wrote a memo to his supervisors about his concerns. His supervisors nonetheless proceeded with the prosecution. Eventually, Ceballos testified in court about his findings and spoke about the matter to the local Mexican-American Bar Association.

    Later, claiming that his supervisors retaliated against him by transferring him and denying him a promotion, Ceballos sued. A federal court threw out his case, but the Ninth Circuit Court of Appeals reversed, finding his speech was protected by the First Amendment. The case was appealed to the U.S. Supreme Court.

    The Supreme Court's Decision

    The Supreme Court rejected Ceballos's claim, finding that, "when public employees make statements pursuant to their official duties, they are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline."

    While the Court affirmed a public employee's right, in certain circumstances, to speak as a citizen on matters of public concern, it found that Ceballos, in engaging in the "speech" at issue, was only doing what he was paid to do—his job—and his comments were therefore not protected by the First Amendment. It was not important to the Court whether the speech occurred inside or outside the office—the point was that Ceballos was acting as a government employee when he spoke, and public sector employers have a right to impose reasonable restrictions on employees who are speaking in their capacities as government employees.

    Lessons for Public Employers

    First, the Ceballos decision should not be read too broadly. The case was decided on the slimmest of majorities—5-to-4—and the Court refused to provide a clear test as to when a public employee is speaking as an employee as opposed to as a citizen. Accordingly, public employers should still proceed with caution before taking disciplinary action for an employee's speech-related conduct.

    Second, the decision applies only to First Amendment free speech claims. Public employees continue to be protected by the various whistleblower and other labor laws that apply in the public workplace.

    Third, public colleges and universities should proceed with caution in cases involving faculty speech issues, as the Supreme Court expressly noted that the Ceballos case did not involve academic freedom issues that might arise in the academy employment setting.

    Finally, the Court suggested that public employers might consider developing internal procedures for employees to privately express criticism. The Court observed that such forums may prevent employee criticism from becoming public.