Interesting. I was in a moot court competition on a Pickering issue in law school, so I now consider myself an expert ...
I think you may be right, and that the seemingly paradoxical result that writing a letter to the paper is protected but on-the-job speech isn't, may be exactly how things *should* work.
A lot of the negative reaction has been of the slippery-slope variety, and I think it's fair to give the Court credit for not letting things slide that way unless & until proved otherwise.
I was deeply troubled by this decision. LB, what you say makes sense, but I can't help thinking that we need to formulate the test so this kind of speech can be protected.
In fact, after I read the majority, I formulated an opinion as to a possible test not much unlike what you noted from Breyer about "comment on official wrongdoing."
Why can't we incorporate the problem you raise of nonsensical or baseless allegations into the test? That is to say, speech that is say reasonably founded comment on official wrongdoing is protected. I don't think it would be so hard for a court to decide whether the comment was reasonably founded (indeed, I think even a subjective standard would satisfy: did this sane person have a belief, supported by some evidence, that official misconduct was taking place?)
Also, my proposed test would line right up with Pickering, because comment on official wrongdoing that was baseless or nonsensical wouldn't be a matter of public concern, right? Only if there was a reasonable basis for the speech in question would it be a matter of public concern, and so then we can preserve Pickering, just with a little more nuance as to what constitutes "public concern."
But seriously, I think what you say makes sense, but what weight do you give to the fact that the retaliation against Mr. Ceballos wasn't in the form of a bad performance review or something like that (although he was denied promotion), it was to ship him off to the department's equivalent of Siberia?
I agree that "the employer has to be able to regulate that content and 'retaliate' against the employee when the content is not what the employer wants". But perhaps, as silvana suggests, "what the employer wants" ought to be subject to a test of reasonableness. Also, what about a requirement that retaliation be reasonable and follow established departmental guidelines?
My problem with all of the possible balancing tests is that they put the court in the position of deciding whether or not the speaker is doing a good job -- essentially speech is protected by the First Amendment when a good employer would have wanted the employee to speak up, and not protected when the employee is wrong or silly or irresponsible. At that point, it doesn't sound like a free speech issue at all to me -- the core theme of free speech protection is that you can say whatever you want, right, wrong, or stupid, and it's not the government's place to decide whether your speech is good enough to be allowed. Allowable restrictions on speech are mostly content-neutral -- speech can be regulated to the extent it will cause tangible harm (ever so roughly) but not because it's wrong.
Here, we've got a situation where the speech has to be regulable to the extent that it's wrong, or stupid, or incompetent, or the government breaks down because it can't manage its employees. Once we're doing that -- regulating speech on the basis of its content -- what in the First Amendment says that a court is a preferable arbitrator of what may or may not be said than the original state employer was?
But seriously, I think what you say makes sense, but what weight do you give to the fact that the retaliation against Mr. Ceballos wasn't in the form of a bad performance review or something like that (although he was denied promotion), it was to ship him off to the department's equivalent of Siberia?
On this, not to comment about the facts of this case but generally, what would you suggest that an employer do with an employee who does their job incompetently, in that they get things wrong when speaking in the performance of their duties? 'Sending them to Siberia' seems like a perfectly appropriate response to an incompetent employee.
If I were the boss I would document the incompetency via a series of performance reviews, provide feedback to the employee, and if things didn't improve, fire the person.
Always? Think about it -- you have a dull, undemanding position in your office, and an employee you don't think much of, because of the things they say in the course of doing their work. Do you think matching up the loser employee with the boring assignment really makes sense as being objectionable under the First Amendment?
Folks, I hope we remember that it's the First Amendment we're talking about here, not the rightness or wrongness of Ceballos's deeds, retaliation thereagainst, etc.
Does the right to free speech really mean that your public-sector boss can't retaliate against you for a memo he thinks is bad? However wrongheaded his reasons for so thinking?
Imagine that principle transposed to the private sector, and tremble.
LB - is one always an amployee of the state, regardless of the venue one is acting in -- do state employees give up the right to behave like concerned citiznes when they accept a government job?
it seems to me that within the workplace an amployee can be evaluated on the basis of his speech acts, but when he enters the public sphere -- and a letter to the editor of a newspaper is one of the clearest examples of that - he's acting in the role of a concerned citizen, not an employee, and should therefore no tbe penalized officially. if his job has nothing to do with public relations, then the split seems even clearer to me.
alternately it could be argued he should be pursuing his case under some whistle-blower's protection act, not freedom of speech.
so, i'm not a lawyer, don't know the case well. but maybe this will give you a few more ideas to play around with?
it seems to me that within the workplace an amployee can be evaluated on the basis of his speech acts, but when he enters the public sphere -- and a letter to the editor of a newspaper is one of the clearest examples of that - he's acting in the role of a concerned citizen, not an employee, and should therefore no tbe penalized officially.
This is absolutely right, and it's the law now under Pickering, unchanged by the decision we're talking about. This decision is only about whether there's a right to be free of workplace discipline for the manner in which you do your job, if your duties consist, as plaintiff's did, of speaking.
If he'd put the same accusations of wrongdoing in a letter to the editor, he couldn't have been disciplined for that.
Notice that Marty Lederman has some serious doubts about whether the "letter to the editor" is really a viable approach in the ever-increasing cases where the only way to go public is to leak classified info.
Garcetti shouldn't be read without thinking of its impact on the Article II State that the Bushistas are erecting.
the dangers of posting when one has limited internet access for reading up on the issue/the links. although i was feeling inspired by having just read auden's "virgin and the dynamo" essay about the differences in role between being a member of a crowd, a community, and a society, and how those roles interact.
Imagine that principle transposed to the private sector, and tremble.
Why would we need to? Such a principle would never be imposed against the private sector (unless there was legislation as such passed). There's already a lot more burden imposed on government employers, and I personally think that's a good thing.
I don't understand why Souter hasn't addressed your concern in the following passage, suggesting that the Nine Circuit Rule, broader than his own, certainly than Breyers, would have no problem with disciplining lies or incompetence:
It is not, of course, that the district attorney lacked interest of a high order in what Ceballos might say. If his speech undercut effective, lawful prosecution, there would have been every reason to rein him in or fire him; a statement that created needless tension among law enforcement agencies would be a fair subject of concern, and the same would be true of inaccurate statements or false ones made in the course of doing his work. But these interests on the government’s part are entirely distinct from any claim that Ceballos’s speech was government speech with a preset or proscribed content as exemplified in Rust. Nor did the county petitioners here even make such a claim in their answer to Ceballos’s complaint, see n. 13, infra.
The point is that once the court is making the distinction between good, protected speech and bad (wrong, incompetent whatever) unprotected speech, we really aren't talking about free speech -- a right to say what you want, whether it's right, wrong, or stupid, without the government's veto over the content. We're saying that some arm of the government gets to censor the speech (well, decide if the speaker may be disciplined for it), just arguing as to whether that arm should be the speaker's employer or a court.
It wouldn't be unworkable for the courts to take on this role, but I don't see anything in the First Amendment saying that "Where speech may be regulated by an arm of the state, that arm may only be a court."
I think Souter is saying we've been there already since Pickering, certainly since the 9th adopted their rule, and the sky hasn't fallen.
I don't think recourse to the courts, when a guy has been dealt with like this, is a bad thing, and I think it is quite unlikely to spin out of control. Souter's dissent convinced me completely, and I note that he is the former Republican Attorney General of New Hampshire.
I'm trying to keep myself conventional in reasoning about the 1st A. At night, drinking, I can be found advocating a return to thought/action, and gleefully contemplating the junking of Buckley and its progeny on that basis.
I think Souter is saying we've been there already since Pickering, certainly since the 9th adopted their rule, and the sky hasn't fallen.
Not on the basis of content. What's the case, is it Rankin, where the speech was, referring to the Reagan assassination attempt, "I hope they get him next time." Now, that's obviously irresponsible, and nasty (my mother's response to news that Reagan was shot, "In the head, I hope), and close to something that would be criminal if meant seriously. But it was protected under Pickering, not because it was true, or reasonable, or valuable, but because it didn't interfere with the functioning of the office where the speaker worked. The government doesn't get to decide, based on the content of your speech, what you're allowed to say.
What Souter is suggesting is that the courts should decide if a given speech had valuable content -- was it good, protected speech or bad, unprotected speech? At this point, it's not free speech any more; the only question is who is the censor going to be.
But aren't courts already doing some kind of factfinding on value when they decide if something is a "matter of public concern"?
I still don't see why it doesn't make sense to say that incompetent blathering is not a matter of public concern, and thus not covered under Pickering.
I don't think recourse to the courts, when a guy has been dealt with like this, is a bad thing, and I think it is quite unlikely to spin out of control.
Certainly the rule advocated by Souter is not a horrible thing, but that does not make it any more wrong. Souter misses the point that the rule announced here has to do with an employee acting in the course of his employment. It is, IMHO, ridiculous to think that the First Amendment was intended to limit the government in its ability to control the work performance of government employees. The plaintiff here (based on the facts he alleges) did a good thing, but it is nowhere written that the constitution prevents people who do good things from paying the price of their vitrue. Plaintiff's problem is that he wants it both ways. He wants to get to refuse to perform his job as his employer wants him to, but pay no price on the theory that his good intentions trump his employer's right to do tell him how to perform his job.
The problem with Souter's rule is not so much that the courts wil be involved (they already are involved) it's that--even when the plaintiff's actions relate to his job performance--he wants a court, rather than the employer (the government) to decide whether the plaintiff's actions were "good" or not (whatever that means).
But aren't courts already doing some kind of factfinding on value when they decide if something is a "matter of public concern"?
There's a difference between identifying the topic something's addressed to (is it a matter of 'public concern'?) and deciding whether it's a good or bad thing to say about that topic. The first can be semi-objective -- once you do the second, you really appear to me to have left the 'free speech' realm.
Certainly the rule advocated by Souter is not a horrible thing, but that does not make it any more wrong.
Yes. I don't think this case is terribly important as a matter of policy one way or the other -- it's a pretty restricted set of facts -- and I don't think Souter's rule would be unworkable or harmful. It just doesn't make sense to me as constitutional law.
I walked this whistle-blower minefield for 18 years as a Federal Union Rep, and the rules for speaking out in public were pretty clear. I could not represent myself as a spokesman of the Agency, but could act as a spokesman for the Union (despite being an employee of the Agency, and being paid by the Agency). In addition, had I brought any wrongdoing to the attention of a Congresscritter, I was also considered a bona-fide whistle-blower. To me, the court does not seem to be inconsistent here.
PS: The constraints placed on an employee's ability to bring problems to public attention were not great at all. You just had to be careful HOW you did it, and in what capacity.
Interesting. I was in a moot court competition on a Pickering issue in law school, so I now consider myself an expert ...
I think you may be right, and that the seemingly paradoxical result that writing a letter to the paper is protected but on-the-job speech isn't, may be exactly how things *should* work.
A lot of the negative reaction has been of the slippery-slope variety, and I think it's fair to give the Court credit for not letting things slide that way unless & until proved otherwise.
Let me direct all to Balkinization, where Kermit Roosevelt takes a Lizard-Breath-like stance, and Marty Lederman retorts.
Posted by Anderson | Link to this comment | 06- 1-06 10:37 AM
I was deeply troubled by this decision. LB, what you say makes sense, but I can't help thinking that we need to formulate the test so this kind of speech can be protected.
In fact, after I read the majority, I formulated an opinion as to a possible test not much unlike what you noted from Breyer about "comment on official wrongdoing."
Why can't we incorporate the problem you raise of nonsensical or baseless allegations into the test? That is to say, speech that is say reasonably founded comment on official wrongdoing is protected. I don't think it would be so hard for a court to decide whether the comment was reasonably founded (indeed, I think even a subjective standard would satisfy: did this sane person have a belief, supported by some evidence, that official misconduct was taking place?)
Thoughts?
Posted by silvana | Link to this comment | 06- 1-06 10:55 AM
Also, my proposed test would line right up with Pickering, because comment on official wrongdoing that was baseless or nonsensical wouldn't be a matter of public concern, right? Only if there was a reasonable basis for the speech in question would it be a matter of public concern, and so then we can preserve Pickering, just with a little more nuance as to what constitutes "public concern."
Posted by silvana | Link to this comment | 06- 1-06 10:57 AM
I always suspected you were a fascist, LB.
But seriously, I think what you say makes sense, but what weight do you give to the fact that the retaliation against Mr. Ceballos wasn't in the form of a bad performance review or something like that (although he was denied promotion), it was to ship him off to the department's equivalent of Siberia?
I agree that "the employer has to be able to regulate that content and 'retaliate' against the employee when the content is not what the employer wants". But perhaps, as silvana suggests, "what the employer wants" ought to be subject to a test of reasonableness. Also, what about a requirement that retaliation be reasonable and follow established departmental guidelines?
Posted by M/tch M/lls | Link to this comment | 06- 1-06 11:24 AM
My problem with all of the possible balancing tests is that they put the court in the position of deciding whether or not the speaker is doing a good job -- essentially speech is protected by the First Amendment when a good employer would have wanted the employee to speak up, and not protected when the employee is wrong or silly or irresponsible. At that point, it doesn't sound like a free speech issue at all to me -- the core theme of free speech protection is that you can say whatever you want, right, wrong, or stupid, and it's not the government's place to decide whether your speech is good enough to be allowed. Allowable restrictions on speech are mostly content-neutral -- speech can be regulated to the extent it will cause tangible harm (ever so roughly) but not because it's wrong.
Here, we've got a situation where the speech has to be regulable to the extent that it's wrong, or stupid, or incompetent, or the government breaks down because it can't manage its employees. Once we're doing that -- regulating speech on the basis of its content -- what in the First Amendment says that a court is a preferable arbitrator of what may or may not be said than the original state employer was?
But seriously, I think what you say makes sense, but what weight do you give to the fact that the retaliation against Mr. Ceballos wasn't in the form of a bad performance review or something like that (although he was denied promotion), it was to ship him off to the department's equivalent of Siberia?
On this, not to comment about the facts of this case but generally, what would you suggest that an employer do with an employee who does their job incompetently, in that they get things wrong when speaking in the performance of their duties? 'Sending them to Siberia' seems like a perfectly appropriate response to an incompetent employee.
Posted by LizardBreath | Link to this comment | 06- 1-06 12:16 PM
If I were the boss I would document the incompetency via a series of performance reviews, provide feedback to the employee, and if things didn't improve, fire the person.
Posted by M/tch M/lls | Link to this comment | 06- 1-06 12:47 PM
Always? Think about it -- you have a dull, undemanding position in your office, and an employee you don't think much of, because of the things they say in the course of doing their work. Do you think matching up the loser employee with the boring assignment really makes sense as being objectionable under the First Amendment?
Posted by LizardBreath | Link to this comment | 06- 1-06 1:00 PM
Folks, I hope we remember that it's the First Amendment we're talking about here, not the rightness or wrongness of Ceballos's deeds, retaliation thereagainst, etc.
Does the right to free speech really mean that your public-sector boss can't retaliate against you for a memo he thinks is bad? However wrongheaded his reasons for so thinking?
Imagine that principle transposed to the private sector, and tremble.
Posted by Anderson | Link to this comment | 06- 1-06 2:02 PM
LB - is one always an amployee of the state, regardless of the venue one is acting in -- do state employees give up the right to behave like concerned citiznes when they accept a government job?
it seems to me that within the workplace an amployee can be evaluated on the basis of his speech acts, but when he enters the public sphere -- and a letter to the editor of a newspaper is one of the clearest examples of that - he's acting in the role of a concerned citizen, not an employee, and should therefore no tbe penalized officially. if his job has nothing to do with public relations, then the split seems even clearer to me.
alternately it could be argued he should be pursuing his case under some whistle-blower's protection act, not freedom of speech.
so, i'm not a lawyer, don't know the case well. but maybe this will give you a few more ideas to play around with?
Posted by mmf! | Link to this comment | 06- 2-06 7:55 AM
it seems to me that within the workplace an amployee can be evaluated on the basis of his speech acts, but when he enters the public sphere -- and a letter to the editor of a newspaper is one of the clearest examples of that - he's acting in the role of a concerned citizen, not an employee, and should therefore no tbe penalized officially.
This is absolutely right, and it's the law now under Pickering, unchanged by the decision we're talking about. This decision is only about whether there's a right to be free of workplace discipline for the manner in which you do your job, if your duties consist, as plaintiff's did, of speaking.
If he'd put the same accusations of wrongdoing in a letter to the editor, he couldn't have been disciplined for that.
Posted by LizardBreath | Link to this comment | 06- 2-06 7:58 AM
Notice that Marty Lederman has some serious doubts about whether the "letter to the editor" is really a viable approach in the ever-increasing cases where the only way to go public is to leak classified info.
Garcetti shouldn't be read without thinking of its impact on the Article II State that the Bushistas are erecting.
Posted by Anderson | Link to this comment | 06- 2-06 8:44 AM
oh, sorry. there i go reinventing the wheel.
the dangers of posting when one has limited internet access for reading up on the issue/the links. although i was feeling inspired by having just read auden's "virgin and the dynamo" essay about the differences in role between being a member of a crowd, a community, and a society, and how those roles interact.
Posted by mmf! | Link to this comment | 06- 2-06 9:12 AM
Imagine that principle transposed to the private sector, and tremble.
Why would we need to? Such a principle would never be imposed against the private sector (unless there was legislation as such passed). There's already a lot more burden imposed on government employers, and I personally think that's a good thing.
Posted by silvana | Link to this comment | 06- 2-06 9:24 AM
I don't understand why Souter hasn't addressed your concern in the following passage, suggesting that the Nine Circuit Rule, broader than his own, certainly than Breyers, would have no problem with disciplining lies or incompetence:
It is not, of course, that the district attorney lacked interest of a high order in what Ceballos might say. If his speech undercut effective, lawful prosecution, there would have been every reason to rein him in or fire him; a statement that created needless tension among law enforcement agencies would be a fair subject of concern, and the same would be true of inaccurate statements or false ones made in the course of doing his work. But these interests on the government’s part are entirely distinct from any claim that Ceballos’s speech was government speech with a preset or proscribed content as exemplified in Rust. Nor did the county petitioners here even make such a claim in their answer to Ceballos’s complaint, see n. 13, infra.
Posted by i don't pay | Link to this comment | 06- 2-06 11:02 AM
The point is that once the court is making the distinction between good, protected speech and bad (wrong, incompetent whatever) unprotected speech, we really aren't talking about free speech -- a right to say what you want, whether it's right, wrong, or stupid, without the government's veto over the content. We're saying that some arm of the government gets to censor the speech (well, decide if the speaker may be disciplined for it), just arguing as to whether that arm should be the speaker's employer or a court.
It wouldn't be unworkable for the courts to take on this role, but I don't see anything in the First Amendment saying that "Where speech may be regulated by an arm of the state, that arm may only be a court."
Posted by LizardBreath | Link to this comment | 06- 2-06 11:08 AM
I think Souter is saying we've been there already since Pickering, certainly since the 9th adopted their rule, and the sky hasn't fallen.
I don't think recourse to the courts, when a guy has been dealt with like this, is a bad thing, and I think it is quite unlikely to spin out of control. Souter's dissent convinced me completely, and I note that he is the former Republican Attorney General of New Hampshire.
I'm trying to keep myself conventional in reasoning about the 1st A. At night, drinking, I can be found advocating a return to thought/action, and gleefully contemplating the junking of Buckley and its progeny on that basis.
Posted by I don't pay | Link to this comment | 06- 2-06 12:01 PM
I think Souter is saying we've been there already since Pickering, certainly since the 9th adopted their rule, and the sky hasn't fallen.
Not on the basis of content. What's the case, is it Rankin, where the speech was, referring to the Reagan assassination attempt, "I hope they get him next time." Now, that's obviously irresponsible, and nasty (my mother's response to news that Reagan was shot, "In the head, I hope), and close to something that would be criminal if meant seriously. But it was protected under Pickering, not because it was true, or reasonable, or valuable, but because it didn't interfere with the functioning of the office where the speaker worked. The government doesn't get to decide, based on the content of your speech, what you're allowed to say.
What Souter is suggesting is that the courts should decide if a given speech had valuable content -- was it good, protected speech or bad, unprotected speech? At this point, it's not free speech any more; the only question is who is the censor going to be.
Posted by LizardBreath | Link to this comment | 06- 2-06 12:24 PM
But aren't courts already doing some kind of factfinding on value when they decide if something is a "matter of public concern"?
I still don't see why it doesn't make sense to say that incompetent blathering is not a matter of public concern, and thus not covered under Pickering.
Posted by silvana | Link to this comment | 06- 2-06 12:31 PM
I don't think recourse to the courts, when a guy has been dealt with like this, is a bad thing, and I think it is quite unlikely to spin out of control.
Certainly the rule advocated by Souter is not a horrible thing, but that does not make it any more wrong. Souter misses the point that the rule announced here has to do with an employee acting in the course of his employment. It is, IMHO, ridiculous to think that the First Amendment was intended to limit the government in its ability to control the work performance of government employees. The plaintiff here (based on the facts he alleges) did a good thing, but it is nowhere written that the constitution prevents people who do good things from paying the price of their vitrue. Plaintiff's problem is that he wants it both ways. He wants to get to refuse to perform his job as his employer wants him to, but pay no price on the theory that his good intentions trump his employer's right to do tell him how to perform his job.
The problem with Souter's rule is not so much that the courts wil be involved (they already are involved) it's that--even when the plaintiff's actions relate to his job performance--he wants a court, rather than the employer (the government) to decide whether the plaintiff's actions were "good" or not (whatever that means).
Posted by Idealist | Link to this comment | 06- 2-06 12:37 PM
But aren't courts already doing some kind of factfinding on value when they decide if something is a "matter of public concern"?
There's a difference between identifying the topic something's addressed to (is it a matter of 'public concern'?) and deciding whether it's a good or bad thing to say about that topic. The first can be semi-objective -- once you do the second, you really appear to me to have left the 'free speech' realm.
Certainly the rule advocated by Souter is not a horrible thing, but that does not make it any more wrong.
Yes. I don't think this case is terribly important as a matter of policy one way or the other -- it's a pretty restricted set of facts -- and I don't think Souter's rule would be unworkable or harmful. It just doesn't make sense to me as constitutional law.
Posted by LizardBreath | Link to this comment | 06- 2-06 12:47 PM
Also at LGM:
I walked this whistle-blower minefield for 18 years as a Federal Union Rep, and the rules for speaking out in public were pretty clear. I could not represent myself as a spokesman of the Agency, but could act as a spokesman for the Union (despite being an employee of the Agency, and being paid by the Agency). In addition, had I brought any wrongdoing to the attention of a Congresscritter, I was also considered a bona-fide whistle-blower. To me, the court does not seem to be inconsistent here.
PS: The constraints placed on an employee's ability to bring problems to public attention were not great at all. You just had to be careful HOW you did it, and in what capacity.
Posted by Ronzoni Rigatoni | Link to this comment | 06- 3-06 7:01 AM