Washington
The Constitution does not safeguard speech made by public employees in the course of their ordinary job duties, a divided U.S. Supreme Court ruled on Tuesday, but the justices left unanswered the question of whether the ruling would apply to public colleges.
In the 5-to-4 decision, the court drew a distinction between “official capacity” speech and speech made by employees acting as “private citizens,” ruling that official speech is not protected even when it touches on matters of “public concern.”
“We hold 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,” Justice Anthony M. Kennedy wrote for the court. He was joined in the majority opinion by Chief Justice John G. Roberts Jr. and Justices Samuel A. Alito Jr., Antonin Scalia and Clarence Thomas.
In one of three dissents filed with the opinion, Justice David H. Souter warned that such a decision could undermine academic freedom on campus.
“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,’” wrote Justice Souter.
In the opinion of the court, Justice Kennedy noted that the ruling would not necessarily apply to academe. In an apparent effort to reassure Justice Souter, he wrote, “We need not ... decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching.”
That caveat came as a relief to the American Association of University Professors, which had filed a brief in the case arguing that a decision restricting public employees’ speech would stifle professors, discouraging them from speaking publicly on topics relating to their area of expertise.
“At least there is a limitation -- a very important limitation,” said David M. Rabban, general counsel for the AAUP and a professor at the University of Texas at Austin School of Law. “I am very pleased that even the majority has recognized that distinctive constitutional considerations apply in the academic context.”
Justices Stephen G. Breyer, Ruth Bader Ginsburg, and John Paul Stevens also dissented.
The case, Gil Garcetti et al. v. Richard Ceballos (No. 04-473), pits Mr. Ceballos, a deputy district attorney, against his supervisors at the Los Angeles County district attorney’s office. In the suit, Mr. Ceballos alleged that he had been retaliated against after he sent a memorandum to his supervisors pointing out “serious misrepresentations” in an affidavit for a search warrant filed by the Los Angeles County Sheriff’s Department. The supervisors proceeded with their case despite Mr. Ceballos’s concerns, and Mr. Ceballos testified for the defense in that case.
After he testified, Mr. Ceballos was reassigned, transferred, and denied a promotion. The supervisors said that those changes were due to staffing needs, and argued that Mr. Ceballos’s memo was not protected speech under the First Amendment. Their argument prevailed in a trial court, but a federal appeals court later concluded that Mr. Ceballos’s free-speech rights had been violated. Tuesday’s Supreme Court ruling reversed that decision.
Christine Helwick, general counsel for the California State University System, said the Supreme Court’s decision provides some “welcome guidance” for university lawyers by laying out “clear rules and tests” establishing the boundaries of First Amendment rights in the workplace.
“Higher-education workplaces tend to be places where there is a lot of robust, controversial communication,” she said. “Often, we find ourselves in places where we need rules, so employers and employees understand the limits on what is protected.”
