The Ass. Press completely mangled (h/t: Say Uncle) the holding in yesterday’s Supreme Court case, Garcetti v. Ceballos, 547 U.S. ___ (2006), which held that work made by government workers in the capacity of their official job duties is not constitutionally protected speech. The Ass. Press unhelpfully summarized the case thusly:
The Supreme Court on Tuesday made it harder for government employees to claim they were retaliated against for going public with allegations of official misconduct.
That is almost the polar opposite of what the Court ruled yesterday. In fact, the Supremes made it harder for government employees to claim they were retaliated against when they don’t go public, and the only “whistleblowing” consists of performing their ordinary job duties. These paragraphs from pages 8-9 of the majority opinion explain the Court’s basic holding:
Respondent Ceballos beleived the affidavit used to obtain a search warrant contained serious misrepresentations. He conveyed his opinion and recommendation in a memo to his supervisor. That Ceballos expressed his views inside his office, rather than publicly, is not dispositive. Employees in some cases may receive First Amendment protection for expressions made at work. See, e.g., Givhan v. Western Line Consol. School Dist. 439 U.S. 410, 414 (1976). May citizens do much of their talking inside their respective workplaces, and it would not serve the goal of treating public employees “like any member of the general public”Pickering, 391 U.S. at 573, to hold that all speech within the office is automatically exposed to restriction.
The memo concerned the subject matter of Ceballos’ employment, but this, too, is nondispositive. The first Amendment protesct some expressions related to the speaker’s job. See, e.g., ibid; Givhan, supra, at 414. As the Court noted in Pickering: “Teachers are, as a class, members of a community most likely to have informed and definite opinions as to how funds allotted to the operation of schools should be spent. Accordingly, it is essential that they be able to speak out freely on such questions without fear of retaliatory dismissal.” 391 U.S., at 572. The same is true of many other categories of public employees.
The controlling factor in Ceballos’ case is that his expressions were made pursuant to his duties as a calendar deputy. See Brief for Respondent 4 (Ceballos does not dispute that he prepared the memorandum ‘pursuant to his duties as a prosecutor.’”) That consideration – the fact that Ceballos spoke as a prosecutor fulfilling a responsibility to advise his supervisor about how best to proceed with a pending case – distinguishes Ceballos’ case from those in which the First Amendment provides protection against discipline. We hold that when public employees make statements purusant 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.
Note that private employees don’t enjoy any special protection for on the job speech, either. The basis of this ruling, in a nutshell, is “like you and me, only no better.”
UPDATE: Patterico disagrees with the ruling.