August 2006
Bulletin 06-24
The First Amendment Does Not Protect Speech Made by
Public Employees Pursuant to Their Official Duties
If you have questions or would
like additional information on the
material covered in this Bulletin,
please contact one of the authors:
Ryan J. Cassidy
(Philadelphia)
215.241.7974
[email protected]
Eugene K. Connors
(Pittsburgh)
412.288.3375
[email protected]
Hardy Ray Murphy
(Los Angeles)
213.457.8060
[email protected]
…or the Reed Smith attorney
with whom you regularly work.
Introduction
The law is clear that the First Amendment protects speech about matters of public
importance made by public employees as citizens, not employees. Pickering v. Board
of Education, 291 U.S. 563 (1968). But does that constitutional protection extend to
the same speech made by public employees pursuant to their official job duties?
Ceballos v. Garcetti, 126 S.Ct. 1951, ___ U.S. ___, 2006 U.S.Lexis 4341 (2006),
answered that question by holding that the First Amendment does not protect public
employee speech made pursuant to official duties. In reaching that holding, the
Ceballos court reasoned that a public employee does not speak as a “citizen” when
the employee speaks “pursuant to” his or her official duties and, therefore, such
speech is not protected even if it concerns matters of public interest.
Factual Background
Richard Ceballos worked as a calendar deputy for the Los Angeles District Attorney’s
Office. After a defense attorney contacted him about a pending criminal case and
expressed concern over inaccuracies in an affidavit used to obtain a critical search
warrant, Ceballos investigated the claims and confirmed the inaccuracies. He then
prepared a disposition memorandum which recommended dismissal of the case
based on his investigation.
A few days later, Ceballos met with and discussed his memo with his supervisors,
the warrant affiant and other employees from the Los Angeles County Sheriff’s
Department. The meeting became heated, as one lieutenant sharply criticized
Ceballos’s handling of the case. Ceballos’s supervisors then overruled his
recommendation and proceeded with the prosecution. Thereafter, the District
Attorney’s office allegedly retaliated against Ceballos by reassigning him from his
calendar deputy position to a trial deputy position, transferring him to another
courthouse, and denying him a promotion.
Ceballos initiated an employment grievance, which was denied and dismissed.
Undeterred, Ceballos filed a federal lawsuit under 42 U.S.C. section 1983, alleging
that the District Attorney’s office had unlawfully retaliated against him in violation of
his First Amendment rights. The U.S. District Court granted the government
summary judgment, concluding that Ceballos’s memo was unprotected speech. The
Ninth Circuit reversed, finding that the Ceballos memo constituted
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protected speech because, as a citizen, he had expressed views on a
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LOS ANGELES
matter of public importance.
The Supreme Court Settles the Conflict
The Supreme Court reversed the Ninth Circuit in a 5–4 decision.
According to the court, when a public employee makes statements
pursuant to his job description, that employee is not speaking as a
This bulletin is presented for informational purposes and is not intended to constitute legal advice.
© Reed Smith LLP 2006. All Rights Reserved.
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Client Bulletin 06-24
citizen and, therefore, his or her speech is not entitled to First Amendment protection.
Ceballos is the latest effort by the U.S. Supreme Court to expound the principles initially set forth in its landmark
decision of Connick v. Meyers, 461 U.S. 138 (1983). Thus, in determining whether a public employee is speaking
as a citizen, the court found that the dispositive factor is not whether the views are expressed inside the office
rather than publicly. As the court noted, “[m]any citizens do much of their talking inside their respective
workplaces.” Ceballos, 126 S.Ct. 1951, ___ U.S. ____, 2006 U.S.Lexis 4341 at *20. Nor is it dispositive that the
speech relates to the speaker’s employment, because public employees often have the most “informed and
definite opinions” about certain public issues relating to that employment. Id. at *21 (citing Givhan v. W. Line
Consol. Sch. Dist., 439 U.S. 410 (1979) (school teacher who complained to principal about racism in her school’s
employment practices protected by the First Amendment, although her comments were in private and related to
her duties as a school teacher)). Instead, the controlling factor is whether the speech is made pursuant to official
duties.
Under the above standards, the court concluded that the Constitution does not insulate employee
communications from employer discipline when a public employee speaks pursuant to official duties. The court
reasoned that official government communications have official consequences and, therefore, government
employers must have the power to ensure that communications by its employees are “accurate, demonstrate
sound judgment, and promote the employer’s mission.” Id. at *23. Thus, when a public employee’s conduct fails
to meet the employer’s expectations, the employer must have some disciplinary authority, even when the
employee’s conduct involved speech.
Notwithstanding the foregoing, the court carefully noted that its refusal to extend Constitutional protections
based on government employees’ work-product does not prevent employees from participating as citizens in
public debate. When public employees participate in public debate, “[they] retain the prospect of constitutional
protection for their contributions to civic discourse.” Id. at *23. However, when public employees operate in
their official capacity, their speech is not protected by the First Amendment because “to hold otherwise would be
to demand permanent judicial intervention in the conduct of governmental operations to a degree inconsistent
with sound principles of federalism and the separation of powers.” Id. at *24.
Based on the foregoing Constitutional interpretations, standards and reasoning, the majority concluded that
Ceballos had no Constitutional protection for his speech, because writing memos was “what he, as a calendar
deputy, was employed to do.” Id. at *211
Unanswered Questions
When Is Speech “Pursuant To” Official Duties?
While the court attempted to fashion a bright line rule to limit the amount of public employment-related
litigation, it, in effect, simply shifted the focus of that litigation. The new focus of litigation will be determining
what speech is “pursuant to” official duties. Blogger Jack Balkin captures this problem: “[T]he Court’s decision
doesn’t really create a bright line rule, because the boundaries of what is within an employee’s job description
may turn out to be quite contestable, and will be contested in future cases.” See Jack Balkin, Ceballos – The Court
Creates Bad Information Policy, BALKINIZATION, May 30, 2006, http://balkin.blogspot.com/2006/05/ceballos-courtcreates-bad-information.html.
What is “pursuant to” official duties is increasingly difficult in today’s world, where the Internet, Blackberry
devices and telecommuting can muddy the line between personal and professional life. According to the court,
Ceballos physically “went to work” to perform his tasks, implying that this determines whether the tasks were
within his job duties. The court leaves open whether telecommuting and other “out of workplace” words and
actions are not “at” work.
An additional factor is that people are more actively posting content to the Internet, a concept often referred to as
“Live Web.” People share videos at sites like YouTube.com, network at places like Myspace.com, and discuss
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Client Bulletin 06-24
any and every imaginable topic on the scores of blogs that dominate the Internet landscape. The court’s decision
in Ceballos does not discuss someone who writes (or podcasts or shares videos) publicly, and partially but not
entirely as a non-work-related endeavor. Does such speech fall within an employee’s official duties? That is
unclear. What is clear, however, is that the court did not discuss that blogs and other Live Web tools make
differentiation between official and non-official duties more complex.
An example is Rory Perry, the Clerk of the Supreme Court of Appeals of West Virginia and a government
employee blogger.2 On his blog, Perry announces official court business, such as changes in court rules and the
publishing of recent decisions, and posts more general content dealing with the issue of technology in the
courtroom. In the “About This Site” section of the blog, he writes, “In my capacity as Clerk of the Supreme Court
of Appeals of West Virginia, I deal with the connections between law, technology and the courts on a daily basis.
Because a central function of a court clerk is to preserve court records and disseminate public information about
the courts and court proceedings, I use this site to pass along relevant news and information about court technology
efforts with a wider community.” Id. (emphasis added). What does Ceballos say about Perry?
The language of the Ceballos opinion suggests that Perry would lack First Amendment protection if publishing
the blog is pursuant to his official duties. But if that is the case, when is a blog published pursuant to official
duties? Would it matter if it was in the employee’s job description? Would it matter if the employee asked or
otherwise received “extra” pay for “his” blog? Is it better or worse, for First Amendment purposes, if Perry
created the blog on his own initiative, rather than at the urging of his supervisors? What if the Perry blog
discussed personal issues as well as professional issues on the blog? How will the court differentiate, if at all,
between personal speech and “pursuant to” speech? Those questions are left for future court answers.3
How Does Ceballos Impact Commercial Speech?
What Ceballos suggests in terms of commercial speech is unclear. One view of the Ceballos decision is that it
facilitates a public employer’s ability to operate on a more level playing field with private employers. That view
signals nothing for commercial speech. Further, the majority in Ceballos focused on making sure the
government, as an organization, could operate efficiently and effectively. That suggests that the majority valued
organizational efficiency over the public’s need for information. Under such logic, the court may bless
restrictions on commercial speech that would impair an entity’s ability to operate efficiently or communicate its
message effectively.
Practical Takeaways
Despite leaving relatively “open” the question of what constitutes “official duties” or what conduct is performed
“pursuant to official duties,” Ceballos does provide guidance to public employers and public employees on First
Amendment rights in the workplace. Below are practical takeaways from Ceballos:
For Public Employers and Employees
Public employers who seek to maximize their insulation from First Amendment-based retaliation claims need to
make sure that important employee speech falls within the employee’s official duties. This effort may include
ensuring that employees’ quasi-professional/quasi-personal activities are part of the employment relationship.
Such efforts to broaden control, however, should be approached cautiously. By attempting to “overprotect,”
public employers might “convert” non-work matters into work-related matters protected by myriad
employment-related laws (indemnity arrangements?). An additional concern is that expanded job descriptions
invite wage, hour, and overtime suits for pay for such “work.”
Moreover, the Supreme Court will not simply accept job descriptions that “bear little resemblance to the duties
an employee actually is expected to perform…[and] the listing of a given task in an employee’s written job
description is neither necessary nor sufficient to demonstrate that conducting the task is within the scope of the
employee’s professional duties for First Amendment purposes.” Id. at 27. Where an employer wants to control
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Client Bulletin 06-24
certain areas of speech, the employer should be sure that such speech actually falls within the employee’s day-today responsibilities.
Finally, because public employees now have Supreme Court incentive to voice concerns publicly rather than
privately, public employers must provide meaningful dispute resolution procedures to voice concerns internally
rather than externally.
For Educational Institutions and Employees
Public educational institutions and their employees might be entitled to additional Constitutional protections,
because the majority suggested that the Ceballos decision might not apply to public educational institutions. As
the majority wrote, “[t]here is some argument that expression related to academic scholarship or classroom
instruction implicates additional constitutional interests that are not fully accounted for by this Court’s
customary employee-speech jurisprudence.” Id. at *27. However, the majority uses noncommittal language.
And, certainly, the additions of Justice Roberts and Justice Alito make the court much different than in 2003,
when the court affirmed the importance of additional Constitutional protections for public universities. See
Grutter v. Bollinger, 539 U.S. 306, 329 (2003) (“We have long recognized that, given the important purpose of
public education and the expansive freedoms of speech and thought associated with the university environment,
universities occupy a special niche in our constitutional tradition”). Thus, while public educational employers
and employees might fall outside the reach of Ceballos, the court’s opinion makes that less than clear.
Conclusion
In Ceballos, the court held that the First Amendment does not protect public employees’ speech made pursuant
to official duties because such employees do not speak as private citizens on matters of public concern.
Accordingly, such employees are not insulated from employer discipline related to such speech. Although the
court left unanswered the question of what constitutes “pursuant to” official duties, it nevertheless provided basic
guidance to public employers and public employees about First Amendment rights in the workplace.
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1
Justices Stevens, Breyer, Souter, and Ginsburg dissented. Justice Stevens noted in his dissent an unintended consequence of the
court’s decision. He wrote, “[i]t seems perverse to fashion a new rule that provides employees with an incentive to voice their
concerns publicly before talking frankly to their superiors.” Id. at *30. Justice Souter’s dissent (joined by Justice Stevens and Justice
Ginsburg) focused on the public’s need for pertinent public information. He also thought the majority’s Constitutional line was
improperly drawn since the value of speech made pursuant to official duties “is no less, and may well be greater, when the employee
speaks pursuant to his duties in addressing a subject he knows intimately for the very reason that it falls within his duties.” Id. at *3637. Justice Souter also expressed concern that the majority’s decision could threaten First Amendment protection for teachers and
academics. Justice Breyer dissented separately, stating that he would have applied the Pickering balancing in Ceballos, but only
because Ceballos, as a lawyer and prosecutor, had special ethical obligations to speak up, and therefore deserved special
Constitutional protections.
2
See Rory Perry’s Weblog, available at http://radio.weblogs.com/0103705.
3
What about blogs maintained by employees of public universities, professors, in particular? Would such blogs be part of their jobs?
The court did suggest a different analysis for such a speaker, to account for the “additional constitutional interests” his or her status as
a scholar and academic instructor could entail. See Ceballos, 2006 U.S. Lexis 4341 at *27.
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