Vol. 21 No. 10- Public Employee Speech And The First Amendment

June 5, 2006

On May 30, 2006 the United States Supreme Court issued an opinion in the case of Garcetti v. Ceballos, 2006 DJDAR 6495, holding that the First Amendment of the United States Constitution does not protect statements, made by a public sector employee, which were made pursuant to his or her official duties.  The Court also points out that other protections can, and do, exist which might be applicable.

As part of his duties as a filing deputy district attorney, Ceballos prepared a memo for his supervisors challenging the credibility of an affidavit, submitted by deputy sheriffs, which was used to secure a search warrant and recommending dismissal of the case. The memo caused the supervisors to follow up, resulting in a “heated meeting with employees from the sheriff’s department.”  The District Attorney’s office ultimately decided to proceed with prosecution of the case.  Ceballos claimed that, as a result of what he said in the memo, he was subjected to retaliation by the D.A.  He sued, claiming his speech (the memo) was protected under the First Amendment.

 The Supreme Court noted that one does not lose his or her constitutional protections when becoming a public employee, however, “(w)hen a citizen enters government service, the citizen by necessity must accept certain limitations on his or her freedom. Government employers, like private employers, need a significant degree of control over their employees’ words and actions; without it, there would be little chance for the efficient provision of public services.”

The Court also acknowledged that public employees are still citizens and can speak out as such.  “So long as employees are speaking as citizens about matters of public concern, they must face only those speech restrictions that are necessary for their employers to operate efficiently and effectively.” (Emphasis added.)

However, “(t)he controlling factor in Ceballos’ case is that his expressions were made pursuant to his duties as a calendar deputy.”  Restricting and regulating speech arising in the course of one’s employment “…simply reflects the exercise of employer control over what the employer itself has commissioned or created.”  The Court ruled that “if Ceballos’ superiors thought his memo was inflammatory or misguided, they had the authority to take proper corrective action.”

The Court also stated that the need to expose “…governmental inefficiency and misconduct is a matter of considerable significance.  (P)ublic employers should, ‘as a matter of good judgment, (be) receptive to constructive criticism offered by their employees.’  The dictates of sound judgment are reinforced by the powerful network of legislative enactments – such as whistle blower protection laws and labor codes – available to those who seek to expose wrongdoing.”  However, the Court rejected “…the notion that the First Amendment shields from discipline the expressions employees make pursuant to their professional duties.”


This case does NOT hold that a public sector employee has no protections from retaliation if he or she is speaking out about government wrongdoing;  what it DOES hold is that the protections of the U.S. Constitution may not be available.  Whether constitutional protections apply will depend upon the facts and circumstances of the case.  If an employee, believing he or she is right, creates a memo or speaks out, pursuant to their job obligations, in a manner which causes internal problems, the First Amendment will not protect them from adverse employment action.

“The employees retain the prospect of constitutional protection for their contributions to the civic discourse.  This prospect of protection, however, does not invest them with a right to perform their jobs however they see fit.”  The Court pointed out that “(s)upervisors must ensure that their employees’ official communications are accurate, demonstrate sound judgment, and promote the employer’s mission.” (Emphasis added.)

Prior to taking any adverse employment action against a public employee for his or her speech (written or verbal), an analysis must be made to decide whether or not it is protected by the constitution, or any other provision of law.  But it must be recognized, by both the public employer and employee, that case law does “…not support the existence of a constitutional cause of action behind every statement a public employee makes in the course of doing his or her job.”

As always, and especially when dealing with unique areas of the law, it is imperative that you confer with your own agency’s legal advisor.  Should you wish to discuss this case in greater detail, please feel free to contact me at 714 – 446-1400 or at mjm@jones-mayer.com.