May 30, 2006

Justice O'Connor Please Come Back! The Ceballos Ruling

Yes, I regularly bashed her writing and her reasoning - but Alito?!?!? That's not really an improvement (and yes, I did say Alito was possibly the best choice the Bush administration could make - but I was saying that in terms of fostering their interests, both political and substantive, not yours and mine). So what do we get with this change in justices? Well, one thing we get is today's Ceballos ruling (which maybe she would have joined - but maybe not). It's damn ugly - both in terms of its holding and in taking away (it would appear) a swath of 1st Amendment protections from government employees (a set which of course includes a huge number of Americans). It's more complicated than that (sort of a mess really - it's important to read the caveats) so read this post by Marty Lederman for the disturbing details. But the central reasoning of the Court appears to move us away from freedom of speech and the protection of whistle blowers.

The looming question in the case was not so much the outcome but the Court's rationale -- and, in particular, the question whether the Court would hold that a government employee's speech in her "official capacity" is entitled to no constitutional protection -- not even of the modest Pickering/Connick/Waters variety. The Solicitor General urged the Court to hold that "the First Amendment has nothing to say about actions based on [a] public employee's performance of his duties."

Today, the Court took that very signifiant step, holding 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." This apparently means that employees may be disciplined for their official capacity speech, without any First Amendment scrutiny, and without regard to whether it touches on matters of "public concern" -- a very significant doctrinal development.

UPDATE: And what does this mean for teachers?

And what does this decision protend for the constitutional rights of teachers in their classroom speech and in their scholarship? The answer is not yet clear. Here's Justice Kennedy again: "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 Courtís customary employee-speech jurisprudence. 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."

UPDATE #2: Jack Balkin points out one of the (seemingly) oddest results of this opinion:

Instead, the Court has retreated to a vision of employee speech cases where employees are protected only where they are least likely to be in a position to know what they are talking about, as in the case of Rankin v. McPherson .... All the doctrine does now is protect people like the dispatcher in Rankin v. McPherson, who is contributing nothing to information about the government's operations, but is just blowing off steam. Perhaps the dispatcher does deserve First Amendment protection, but the doctrine shouldn't be organized around her.
Posted by armand at May 30, 2006 10:52 AM | TrackBack | Posted to Law and the Courts


i'll have to look at this decision before passing judgment, but just from this stuff one wonders what qualifies as "official capacity" speech, since that's evidently all the decision works to constrain. i take it the whistleblowing at issue in this case qualified, but it's not self-evident that all whistleblowing speech does.

in this area, in any case, i'm not sure why you think o'connor would have gone the other way. not saying i feel strongly that she wouldn't have, but she wasn't exactly an immoveable object when it came to executive exercise of power in the federal employment context.

like i said, i need to read the opinion, but i will point out that if you're already upset it's going to be a long month. hidden behind all the vanilla consensus decisions issued by the Roberts Court has been a growing pile of more contentious cases, all of which will be flooding out of the Court in the coming weeks.

you didn't think a sharply divided Court was going to be all that unanimous just because they seem more interactive and collegial now, did you? this spring will reveal, i suspect, that on important matters it's just more of the same.

Posted by: moon at May 30, 2006 02:05 PM | PERMALINK

Oh I was expecting this, more or less. And I expect more unfortunate decisions on (constraining) free speech rights in the future. But I'm still troubled. Particularly since it seems perhaps easier to gradually remove the caveats to this general fule that the Court is laying down than to reverse that rule itself.

And like I said, sure O'Connor might have voted exactly the same way as Alito on this - but Lederman suggests she might very well have not.

Posted by: Armand at May 30, 2006 02:13 PM | PERMALINK
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