GARCETTI v. CEBALLOS

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Argument of Cindy S. Lee

Chief Justice Roberts: We'll hear argument now in Garcetti v. Ceballos.

Ms. Lee.

Mr. Lee: Chief Justice Roberts, and may it please the Court:

The issue presented is whether the first amendment requires protection for all public employee speech that touches on a matter of public concern without any consideration of whether the speech was expressed as a citizen.

The ninth circuit's approach affords no consideration for the role of the speaker as a citizen or an employee at the time of the speech.

This approach, however, plants a seed of a constitutional claim in virtually every speech that public employees express while carrying out their regular job duties.

Justice Souter: Well, that's... I mean, I can see--

Justice O'Connor: Do you think that the court tried to apply the Pickering test?

Mr. Lee: The ninth circuit clearly did not apply the Pickering test when they were doing the initial analysis, a threshold analysis, of whether or not the speech at issue was constitutionally protected.

Justice O'Connor: Do you think that the Pickering test, properly applied, would have reached a different result in this case?

Mr. Lee: Not necessarily, not the way the ninth--

Justice O'Connor: It could have--

Mr. Lee: --circuit viewed it.

Justice O'Connor: --certainly.

Mr. Lee: Well, in the ninth circuit's view, the capacity of an employee at the time of the speech is of some factor.

It's a determinative factor.

But, in its view, it was a factor that should be weighed against finding no constitutional protection.

In its view--

Justice O'Connor: Do you think that the proper application of Pickering would yield a different result in this case?

Mr. Lee: --Our view is that--

Justice O'Connor: Could it?

Mr. Lee: --if the application of the Pickering is re articulated such that when job required speech is at issue, like in this case, the employer should invariably win or have a... an easier time of prevailing.

But, in this case, the ninth circuit didn't see it that way.

The ninth circuit took the view that the capacity of an employee at the time of the speech is a factor, but it would be difficult for an employer to justify employment decisions made when the employee is speaking as required by the duties of employment.

Justice Souter: --Counsel, you made the point that if we go the ninth circuit way, every time an employee gets Dutch there's a potential first amendment issue.

Why hasn't that been a problem since 1988 in the ninth circuit?

I think 1988 was the year of the circuit's Roth decision.

So, we haven't seen a deluge, and doesn't that rather discount your argument?

Mr. Lee: Well, our view is that if we accept the ninth circuit's approach, then speech by public employees expressed while carrying out their assigned job duties would virtually... invariably be--

Justice Souter: No.

Mr. Lee: --a matter--

Justice Souter: I realize that, but that... as I understand it, that has been true since the ninth circuit's Roth decision in 1988.

And apparently we have not seen a deluge of these claims, or we would have had citations to the cases.

So, doesn't that rather discount the concern that you express?

Mr. Lee: --Not necessarily.

The ninth circuit and the other circuits that have made, primarily, content the determinative factor in finding presumptive first amendment protection have, in some regards, considered the capacity of an employee as whether or not the speech should be protected under the first amendment, but they've done so in the context of whether or not it is a matter of public concern.

So, the ninth circuit is alone in having addressed squarely whether or not job required speech should not be afforded presumptive first amendment protection.

The other--

Justice Souter: But didn't... maybe I'm wrong on my assumption, but didn't the ninth circuit take that position, back in 1988?

Mr. Lee: --That's correct.

Justice Souter: Okay.

Chief Justice Roberts: What do you do if a public university professor, who... is fired for the content of his lectures?

Certainly, in the course of his employment, that's what he's paid to do.

That has no first amendment protection?

Mr. Lee: Well, it would be our view that if the assigned job duties of that university professor was to speak on a particular topic or content, and they were getting paid for doing that, that that is a job required % speech and that it should not be entitled, presumptively, % to first amendment protection.

Now, that is a far cry from--

Chief Justice Roberts: "Should not be entitled, presumptively, to first amendment protection. "

what does that mean?

That there might be first amendment protection, in light of the particular context--

Mr. Lee: --Our--

Chief Justice Roberts: --of the speech?

Mr. Lee: --Well, according to the ninth circuit's view, anything... anytime a public employee speaks, and that speech relates to a matter of public concern, that is presumptively entitled to first amendment protection, such that the burden is on the employer to justify the decisions for the employment actions taken.

Our view is that the employer should not have that burden until the first threshold is made, that the speech is expressed as a citizen on a matter of public concern.

Justice Scalia: I suppose that, in the situation the Chief Justice mentioned, the professor would still be able to contend that the university fired him because it disagreed with the political content of his speech or because of the university's politics.

He could still make that claim, couldn't he?

Mr. Lee: Our approach would not prohibit that--

Justice Scalia: But the--

Mr. Lee: --kind of--

Justice Scalia: --burden would be on him, as it would be in most cases--

Mr. Lee: --That's correct, Justice Scalia.

Justice Scalia: --to show that that was true.

Mr. Lee: That's correct.

Justice Scalia: Whereas, the ninth circuit would put it on the... put the burden on the university to show that it wasn't true.

Mr. Lee: That's correct.

The ninth--

Chief Justice Roberts: I would have thought you might have argued that it's speech paid for by the Government, that's what they pay him for, it's their speech; and so, there's no first amendment issue at all.

Mr. Lee: --In essence, the principle of our approach is supported by those Government subsidizer cases, like the Rust v. Sullivan.

Our--

Justice Ginsburg: But in Rust v. Sullivan, the Government was buying a commodity.

It was the Government's program, and it was employing people, funding people to implement that program.

Here is a person whose job includes being candid, serving justice, serving truth.

If that's part of his job responsibilities, that's quite different from speaking the speech that the Government wants spoken.

Mr. Lee: --Well, in this case, we think that the job duties are aligned with those subsidizer cases.

We have a deputy district attorney whose job duty was to assess the merits of the prosecution's case, which he did.

That includes assessing the credibility of a witness.

Because his conclusions in this case were that the prosecution's witness was not very credible does not make that task extraordinary.

Justice Scalia: I guess if your job is to speak truth, and you speak falsehood, that's a good reason to fire you, which is what happened here.

Mr. Lee: That could be a--

Justice Scalia: But you don't--

Mr. Lee: --legitimate reason.

Or--

Justice Scalia: --contend that, do you?

Mr. Lee: --or the employer doesn't--

Justice Stevens: Do you contend--

Mr. Lee: --necessarily have to--

Justice Stevens: --that his statement was false?

Do you contend the speech was false?

Mr. Lee: --Our position is that the speech was inaccurate and that--

Justice Souter: Well, but how do we know that?

We're at summary judgment.

Mr. Lee: --Well, we have the... the deputy district attorney's disposition memorandum assessed that... in his view, that the prosecution was going to lose on the pending motion to dismiss, in... on the grounds of that the search warrant was going to be... was going to be found invalid.

That was the essence of the deputy district attorney's assessment.

And in his memorandum, as part of his prosecutorial duties, he evaluated that.

He told his supervisor,

"Look, you know, I'm looking at the credibility of the officer. "

"I conducted an investigation. "

"I don't think we're going to win on this case. "

The supervisor initially thought,

"Okay, you have a point. "

but ultimately decided,

"You know what? "

"I'm not as sure as you are. "

"We have a motion to traverse on calendar, where we have a judge who's going to be assessing that, so let's see what happens. "

That judge found that the search warrant was valid.

And so, in essence, we have a public employee who is challenging employment decisions made by his supervisors--

Justice Souter: No, I realize that, but where do you... how do you infer, from that, that the individual, the employee, was not telling the truth?

Mr. Lee: --That--

Justice Souter: If--

Mr. Lee: --It is not our--

Justice Souter: --if I--

Mr. Lee: --position--

Justice Souter: --if my ethical record amounted to a lie every time I made a... an inaccurate prediction about what a court was going to do when I was a young lawyer, I would have had a very short career.

[Laughter]

And that seems to me as much as you can infer from what this individual did.

Mr. Lee: --Justice Souter, it is not our position, and we have never taken the stance, that the deputy district attorney in this case was reckless in regards of his speech--

Justice Souter: Oh.

Oh.

Okay.

Mr. Lee: --or his evaluation.

Justice Souter: So, we don't--

Mr. Lee: Our view is that--

Justice Souter: --we don't know why it didn't pan out the way he said it was going to, and we don't know that he was... that he was lying.

Mr. Lee: --Correct.

What--

Justice Souter: Okay.

Mr. Lee: --we do know is that the... it is our view that the supervisor... while the supervisor contended that he did not react to this speech adversely, that he could have.

We have here speech that was required by the job.

The employee here... if we take the ninth circuit's approach, we would be providing public employees a constitutional right to perform their assigned job required duties in a way that is to the dissatisfaction of the public employer.

Justice Scalia: Yeah, but you don't have to establish that he was lying; just that his prediction... his job, was to predict, and he made a... an erroneous... a false prediction.

Don't have to show that he intended to do that.

Mr. Lee: That's correct, Justice Scalia.

Justice Stevens: Yes, but the disposition by the... I mean, his grievance by the hearing examiner was that there was no retaliation.

He assumed that the speech was proper and there was no inefficiency or misconduct on the part of the speaker.

Mr. Lee: Well, the internal grievance procedure resulted in the finding that the supervisors did not retaliate against the deputy district attorney for the... for his job required duties.

Justice Stevens: And, in my understanding, that was the only defense that was made for the charge, that, "We didn't retaliate".

There was no claim that the speech was improper in any way.

Am I wrong on that?

Mr. Lee: That's correct--

Justice Stevens: Yeah.

Mr. Lee: --Justice Stevens.

Justice Stevens: So, we assume, for purposes of our case, that what he said was totally accurate and did not, itself, provide the basis for saying he was incompetent or something of that... like that.

Mr. Lee: Well, we assume, for purposes of the summary judgment motion, that he was within his prosecutorial duties in making those assessments.

Justice Stevens: Can I ask you one--

Justice Scalia: Excuse me, I'm not sure I understood the answer to the first question, John.

Was he not fired because he had made an improper assessment?

Justice Stevens: --No.

Mr. Lee: No, our position has never been that the supervisors took any retaliatory action as a result of his speech.

He was not fired.

What the--

Justice Scalia: Yes.

Mr. Lee: --deputy district attorney--

Justice Scalia: Right.

Mr. Lee: --challenges here is various employment decisions by his supervisor, claiming that they were in retaliation for him having prepared and communicated a disposition memorandum that was within the course and scope of his employment duties.

Justice Scalia: And your defense is that the--

Mr. Lee: Our--

Justice Scalia: --actions were not taken with any reference to this... to this at all.

Mr. Lee: --our position has been that the employer could certainly have reacted, or responded, to the speech or the way he conducted his job, or performed his job, but they didn't, in this case.

There were... there were legitimate business reasons for the employment--

Justice Scalia: But that's surely a--

Mr. Lee: --decisions made.

Justice Scalia: --surely a factual inquiry, which will be disputed.

If you want to win on summary judgment, it seems to me you have to establish that, assuming he was fired because of this speech, that would be... or not promoted because of his speech... that would be perfectly okay.

Mr. Lee: That's correct--

Justice Scalia: That's where--

Mr. Lee: --Justice Scalia.

Justice Scalia: --we are.

Mr. Lee: That's--

Justice Scalia: We assume--

Mr. Lee: --that's correct.

Justice Scalia: --that that was the reason for the later actions.

Mr. Lee: And the problem with the ninth circuit's approach is that every time there is job performance at issue that's required by the public employee, it essentially puts the question before a jury or a Federal court to assess the motives--

Justice Ginsburg: But what is your position?

Mr. Lee: --to assess the reasonableness of the decisions made.

Justice Ginsburg: Ms. Lee, is your position that job required speech... an assistant district attorney's obligation is to give his best opinion... that job required speech is outside the first amendment protection?

You say the ninth circuit went too far, in one way.

But are you saying that as long as it's related to his job, it's simply not protected by the first amendment?

Is that your position?

Mr. Lee: Our view is that job required speech is not of a character for which principles of first amendment should protect.

In Pickering, the public school teacher sought to be treated as a member of the general public when he sent his letter to the newspaper criticizing the allocation of financial resources by the school board.

Justice Ginsburg: Yes, I understand--

Mr. Lee: Nothing like that arises--

Justice Ginsburg: --I understand that, but I was confused by your answer to Justice O'Connor, because the question was, Would this come out a different way under Pickering?

And I take it your answer is, this doesn't come in the door, because he's not speaking as a citizen.

Mr. Lee: --Under the current... my... under my current understanding of the Pickering balancing... which is... shifts the burden to the employer to justify the employment decisions made... that we don't... I don't necessarily believe that the Pickering would clearly weigh in favor of the employer in this case, even though the speech was so connected to the duties of employment--

Justice Ginsburg: I'm confused.

You think that this... there was an aspect of it that was citizen speech?

Why--

Mr. Lee: --No.

Justice Ginsburg: --I--

Mr. Lee: We contend that it should... in situations where the speech at issue is job required, and that employee is getting paid for engaging in that kind of duty, that the balance should weigh in favor of the employer.

And I believe the respondent--

Justice Ginsburg: --Well, what do you mean--

Mr. Lee: --concedes as much.

Justice Ginsburg: --by

"the balance, weigh in favor? "

Because, a moment ago, I thought you answered me,

"This kind of speech simply is not shielded by the-- "

Mr. Lee: That's correct.

Justice Ginsburg: --"# first amendment".

Mr. Lee: Our... the... our view is that job required speech should not be protected under the first amendment, so there is no need to go into the balancing, there is no need to go into the weighing of the interests of the employer versus the interest of the employee.

The balancing has been required in the... in the line of cases that the court has held... the language that the court has used in this first amendment public employment context is, when you do the balancing, you weigh the interests of the State, as an employer, versus the interests of the employee, as a citizen, when engaging in this speech.

Our view is that the balancing should only be required when the--

Justice Stevens: You would give--

Mr. Lee: --public employee--

Justice Stevens: --greater protection to a public speech than to a comment from... on the job from... to one's superior.

Can you give me an example of a statement that would provide... be entitled to complete first amendment protection if made in a speech, but could justify a discharge if made face to face with your employer?

Mr. Lee: --I'm sorry, could you repeat that?

Justice Stevens: Could you give me an example of a statement that would be protected in a public speech, but, if made privately to your superior, could provide the basis for a discharge?

Mr. Lee: I believe the Court's referring to facts similar to Givhan, where there you had speech made privately to a supervisor, and--

Justice Stevens: Which was--

Mr. Lee: --this Court--

Justice Stevens: --protected.

Mr. Lee: --this Court has found that it was protected under the first amendment.

Justice Stevens: Yes.

Mr. Lee: However, the Court did not need to address the role of the speaker in that case, because there you had an English teacher who was criticizing the racial--

Justice Stevens: You're not--

Mr. Lee: --policies--

Justice Stevens: --responding to my question.

My question is, Can you give me an example of a statement that would be entitled to protection if made in a public speech, but could be a basis for discharge if made face to face?

Mr. Lee: --It could be in this case, where the prosecutor, who is assigned, or authorized, to speak on behalf of the DA's office in a pending criminal action, made comments to the press about the nature of the case, but, rather... and, in this particular scenario, goes too far, goes beyond what the DA's office allowed him to speak on.

Justice Stevens: No, I'm--

Mr. Lee: He could--

Justice Stevens: --asking you if--

Mr. Lee: --certainly be discharged for that.

Justice Stevens: --what he says privately could the basis for a discharge.

Surely, he couldn't be discharged for what you just described.

Mr. Lee: The... under our approach, the issue is not whether it's privately or publicly.

If the job requires him to speak in a... within the internal channels, then that speech... he's doing his job, he's getting paid for it, and he should not be entitled to first amendment protection.

Unless there are any other questions--

Justice Souter: Is that--

Mr. Lee: --I'd like to--

Justice Souter: --is that true in this case?

I realize they didn't get to it on summary judgment, but is that true in this case with respect to a Brady disclosure?

Mr. Lee: --Brady disclosures are the obligations of the district attorney's office.

So, in this case, when the deputy district attorney believed that it should be disclosed, his supervisor had an absolute right to, say, on behalf of the DA's office, challenge that decision to disclose.

Justice Souter: What if... what if the lawyer simply believes that he has an ethical obligation to make the disclosure, and he makes it, and he is then subject to retaliation?

No first amendment claim on his part?

Mr. Lee: Those ethical obligations would build... would arise from his capacity as a prosecutor.

Prosecutors are employees.

Governmental employees have a general standard of ethical conduct.

That doesn't mean that they are getting paid for the same assigned job duties.

Justice Souter: Well, does that mean... what's your answer to my question?

If he makes the Brady disclosure because he believes that is an ethical obligation, and he is then subject to retaliation, does he have a first amendment claim, or not?

Mr. Lee: It's our view that he does not.

I'd like to reserve the remainder of--

Chief Justice Roberts: Thank you--

Mr. Lee: --my time for rebuttal.

Argument of Dan Himmelfarb

Chief Justice Roberts: --Ms. Lee.

Mr. Himmelfarb.

Justice O'Connor: What's your answer to that last question, Mr. Himmelfarb?

Mr. Himmelfarb: A Brady obligation is an obligation of a prosecutor in his capacity as a prosecutor; and a Brady disclosure, like a recommendation to a superior that there should be a Brady disclosure, constitutes the exercise of the prosecutorial function by a prosecutor.

It is employee speech, and that speech, if it engenders an employment action, should not be sufficient for the employee to get past the first step of the Pickering balancing.

If there is--

Justice O'Connor: So, no free speech protection under Pickering.

Mr. Himmelfarb: --That's exactly right, Justice O'Connor.

Justice O'Connor: And how about this case?

Could it not be resolved under a proper handling of Pickering?

Mr. Himmelfarb: Well, we think a proper handling of Pickering is that respondents should not get past step one of the balancing, because the speech is expressed in his capacity as an employee.

Justice O'Connor: Now, what about retaliation claims that the employee may have?

What about whistleblower type claims by an employer?

Are they... are they separate from the first amendment concerns?

Mr. Himmelfarb: We don't think they are, Justice O'Connor, if the whistle blowing is required by the employee's speech.

If an investigator in an inspector general's office, whose job it is to investigate and report government misconduct, reports misconduct, and an action is taken as a result... an employment action is taken against them as a result... he is demoted or transferred, because it's the view of his superior that he didn't perform his job properly in speaking on that issue... that should not enable the investigator to get past the first step.

Justice Scalia: What if the reason... what if the reason for the... for firing him is that he's a Democrat and it's a Republican Administration, and the speech is used as the pretext?

Mr. Himmelfarb: Justice Scalia, I think that case would be covered by this Court's patronage cases, which would absolutely prohibit that sort of employment action.

But in a case where it's not party affiliation that motivates the employment action, if the speech is expressed in carrying out the employee's duties, he may have a civil service remedy... indeed, that's precisely what the civil service laws were designed to deal with, a situation where the employee is just doing his job, an action is taken again him, and there's a dispute as to whether he was doing his job properly, about whether he was insubordinate, or simply about whether he was--

Justice Breyer: Suppose that we have an instance where it is job related.

He is not speaking as a private citizen, and it's also a public concern.

Now, in such an instance, could we say that, at least if the matter of public concern rise to the level where it's related to an independent constitutional protection... say, founded in the due process clause... under those circumstances, the employer cannot unreasonably... though we give him an area of discretion, he cannot unreasonably retaliate.

Mr. Himmelfarb: --I don't think so, Justice--

Justice Breyer: Why not?

Mr. Himmelfarb: --Breyer.

Justice Breyer: Why not?

And here is an independent obligation.

Mr. Himmelfarb: To--

Justice Breyer: It's very unusual--

Mr. Himmelfarb: --To--

Justice Breyer: --but it's there.

Mr. Himmelfarb: --To use the example of this case, if respondent advised his supervisor that, in his professional judgment, a Brady disclosure should be made, and if the supervisor disagreed with him, and if reasonable minds could differ as to whether the disclosure should be made, and he made it, nonetheless, he would be insubordinate.

And we don't think that that is the--

Justice Breyer: You'd only lose... the Government would lose, only where you can conclude that they could... "they", the Government... could not... could not reasonably conclude that he'd been insubordinate.

Mr. Himmelfarb: --Justice Breyer--

Justice Breyer: So, we covered the case of the Democrat, Republican, et cetera.

In other words, we'd give him... should we give him total discretion?

Can't we limit that discretion of the supervisor?

Mr. Himmelfarb: --If it's... if it's a situation where reasonable minds cannot differ, and the superior directs him not to make the disclosure, in clear contravention of the due process clause as interpreted in Brady, that is a situation--

Justice Stevens: But, Mr. Himmelfarb, in that case he could also be fired if he made the statement in a speech, could he not?

Mr. Himmelfarb: --If he made the statement in a public speech--

Justice Stevens: Right.

Mr. Himmelfarb: --or in a letter to the editor of a newspaper, we think that speech would be presumptively protected by the first amendment.

Justice Stevens: But could he not be fired if the scenario you just described as--

Mr. Himmelfarb: Maybe he could, Justice Stevens, but that would be subject to balancing, and it would be the employer's duty to justify the firing, based on workplace disruption.

Justice Stevens: --It seems to me odd that the employee has greater protection if he goes outside the regular channels and makes a speech than if he does... he goes right to his superior and says,

"I think this is what's wrong and should be remedied. "

Mr. Himmelfarb: Well, it's not that odd, Justice Stevens, because if you have an obligation to report misconduct... take, again, the example of the investigator in the inspector general's office... you will ordinarily be better off by reporting it through the ordinary channels.

Justice Stevens: Right.

Mr. Himmelfarb: Because, ordinarily, you have--

Justice Stevens: You may have no constitutional protection.

But if you go ahead and make a speech, you do.

Mr. Himmelfarb: --Well, you have presumptive first amendment protection.

If you work in the inspector general's office, and there is a prohibition on disclosing pending investigations, and you hold a press conference, there is a very good chance you're going to lose at step two of Pickering, which is why it's in your interest to disclose it through appropriate channels, because--

Chief Justice Roberts: But it's going to be clear that that's violating your job, and it has an adverse impact on your job related duties, because you're going public, instead of going through the channels.

Mr. Himmelfarb: --Well, that's right.

If you have an... if it's a part of your job, you have an incentive to do it, just like any other job requirement.

And it's ordinarily not the case that public employees are punished for doing their jobs.

They're more often punished for not doing their jobs.

So, in that situation, the employee is going to likely be better off by making the disclosure through appropriate channels.

Justice Stevens: But he has less constitutional protection.

Mr. Himmelfarb: That's true, Justice Stevens, but civil... it's our view that civil service laws are the mechanism for dealing with a situation where you're doing your job and there's a dispute as to whether you're doing it properly or not.

Chief Justice Roberts: How comfortable are you that this line you're trying to draw is one that's going to be workable in practice?

I mean, suppose the employee writes a memo, and the boss comes and says,

"If you don't promise me you're not going to talk about this publicly, you're fired. "

And he says,

"Well, I'm not going to promise that. "

And so, he's fired.

Now, is that internal, or is that external?

Mr. Himmelfarb: If the... if the memo is required by his job, it's--

Chief Justice Roberts: Right.

Mr. Himmelfarb: --a recommendation about what policy the agency--

Chief Justice Roberts: That's--

Mr. Himmelfarb: --should take--

Chief Justice Roberts: --required by his job.

But

"promise that he's not going to talk about it. "

is not required by his job.

And this case, kind of, raises the question, because the only reason it's squarely presented on the memo is because the court didn't reach the Brady disclosure or the talk to the bar association that were related to the memo.

Mr. Himmelfarb: --That's right.

In answer to your question of how difficult it's going to be to draw the line, I think in most cases it won't be difficult to draw the line.

I don't think it was difficult in this case.

I'm not aware of any cases that applied principle we advocate where it has been.

There may be some cases where it will be difficult to draw the line, but--

Justice Kennedy: I suppose you have the rule which distinguishes between employment related and outside speech, under the hypothetical... difficult hypothetical posed by the Chief Justice, it would be an... the promise would be an unconstitutional condition, or something like that.

Mr. Himmelfarb: --That may--

Justice Kennedy: I--

Mr. Himmelfarb: --that may... that may be, Justice Kennedy.

Justice Kennedy: --I suppose--

Justice Scalia: And I suppose that what constitutes a matter of public interest is not the clearest line in the world either, is it?

Mr. Himmelfarb: That's absolutely right, Justice Scalia.

This Court has already decided that it's important to draw a line at step one in distinguishing between speech on a matter of public concern and speech on a matter of private concern, even though it will often be hard to draw that line.

And the reason that line has to be drawn is that the alternative is, in effect, to constitutionalize the law of public employment.

Justice Souter: Do you... let me ask you this... do you propose drawing the line... or at least drawing a line in some circumstances this way: That, at step one, if it can be concluded that a private communication between the employer and the employee would have constituted the discharge of the employee's assigned work... so that it would have been within the scope of his employment, and, therefore, not subject to Pickering balancing, if he had made the statement to the employer... that, therefore, the statement cannot be regarded as a statement of public interest, even if he had disclosed it publicly, or if he took a further step and went to the bar association and whatnot?

Mr. Himmelfarb: Justice Souter, we see these as two separate requirements to get past step one.

The speech has to be on a matter of public concern, but it also has to be speech in the speaker's capacity as a citizen.

Justice Souter: But if it is within... I'm sorry, but if it... if it is within the speaker's assigned duties as an employee, does that preclude a conclusion, later on, that he was speaking as a citizen, even if he goes public with it?

Mr. Himmelfarb: I don't think it does, Justice Souter.

If--

Justice Souter: So, we do have, then, the problem that Justice Stevens has raised.

Mr. Himmelfarb: --That's right.

I don't... I don't see it as much of a problem, for the reasons I tried to give in responding to Justice Stevens.

Justice Ginsburg: What about the hearing at which this office had testified?

I thought that part of the complaint was,

"When I spoke at the hearing, I was speaking in a public forum, and they fired me for it. "

Mr. Himmelfarb: May I answer the question?

Chief Justice Roberts: Yes.

Mr. Himmelfarb: My understanding is that that's not part of the complaint, Justice Ginsburg.

And my understanding also is that, in the district court, respondent took the position that his testimony at the hearing was in his capacity as an employee.

Argument of Bonnie I. Robin-Vergeer

Chief Justice Roberts: Thank you, Mr. Himmelfarb.

Ms. Robin Vergeer.

Mr. Robin-Vergeer: Mr. Chief Justice, and may it please the Court:

Ever since Pickering, it has been the law that the first amendment protects public employees from being fired or punished for expressing views on matters of public importance where, as here, there is no harm or disruption to their employers.

Petitioners in... the United States asked this Court to scrap that.

It is not just the ninth circuit.

Justice Scalia: Well, it--

Justice Kennedy: Well, I'm not sure that that was clear from the decisions of this Court.

Certainly, that wasn't what was involved in Pickering.

That was outside speech.

Mr. Robin-Vergeer: That's correct.

But it's been the--

Justice Kennedy: And the same... and the same with Connick.

So, I'm... if you're saying that this is what the circuits have understood, fine, but that's not this... that's why we took this case.

Justice Scalia: --And I think all the cases did say

"expressing views as a citizen on a matter of public concern. "

Wasn't that qualifier always used?

Mr. Robin-Vergeer: --The qualifier has always been used in conjunction with the phase "on matters of public concern".

Justice Scalia: So, what does it mean?

What is... what is your explanation for that qualifier, "expressing views as a citizen"?

Why do we--

Mr. Robin-Vergeer: It--

Justice Scalia: --continually say that?

Mr. Robin-Vergeer: --it was used exclusively to explain, and especially to look at the context in which the phrase first appears, in Pickering, that public employees, like all citizens, have an interest--

Justice Kennedy: Well, let's assume that--

Mr. Robin-Vergeer: --on matters--

Justice Kennedy: --I think that that's an open question under Pickering, and that this case presents it.

Do you... do you concede... and maybe you don't... that there is any category of first amendment speech, as a matter of public concern, which an employee cannot direct to the employer?

Are there... are there some matters as to which the employer can protect its own interests and stifle the employee's speech?

Mr. Robin-Vergeer: --Speaking on a matter of public concern only gets the employee presumptive first amendment protection.

Justice Kennedy: So, there's always Pickering balance.

Mr. Robin-Vergeer: There would be a Pickering balance, yes.

And the Pickering balancing test is quite deferential to the employer.

The Court observed, in the Pickering case, that it's proper to look... that a court should look at the proper performance of the employee's daily duties.

In Rankin, the Court talked about the questions whether the speech interferes with work, personnel relationships, or the speaker's job performance.

The bar is already quite high for the employee, coupled with causation burdens, qualified immunity, and so on.

And so, it is not the case that just because a... an employee speaks on a matter of public concern, that that employee is necessarily going to win a first amendment case.

Also--

Justice Ginsburg: Ms. Lee... Ms. Lee told us that the ninth circuit weighed the capacity of the plaintiff as an employee, rather than a member of the public, in favor of the employee and against the employer.

Is that how you read the ninth circuit's decision?

Mr. Robin-Vergeer: --No, I think... it's not quite right.

I think the ninth circuit just looked at whether his speech was reporting Government misconduct, a type of speech that the circuit said uniformly recognized was of paramount public importance.

Justice Kennedy: But--

Mr. Robin-Vergeer: And--

Justice Kennedy: --any comment that an employee makes regarding how the office is working is a matter of public concern.

I would concede that.

I mean--

Mr. Robin-Vergeer: --With--

Justice Kennedy: --that has to be.

Mr. Robin-Vergeer: --with respect, I don't--

Justice Kennedy: And the consequence of your view is to have the first amendment being used for courts to monitor the discussions that take place in every public agency... local, State, and Federal... in the United States.

It's... you are advocating a sweeping rule.

Now, you'll say,

"Oh, well, Pickering balance will protect it. "

Mr. Robin-Vergeer: --With--

Justice Kennedy: But I still think the intrusive consequences of your... of your rule are sweeping.

Mr. Robin-Vergeer: --With respect, the public concern threshold is not so easily met.

The court has said--

Justice Breyer: I guess our law clerks would meet it every day.

Mr. Robin-Vergeer: --Maybe.

Maybe not.

Justice Breyer: Yeah, maybe, maybe not.

I don't--

Mr. Robin-Vergeer: But the court has--

Justice Breyer: --anything that goes on in my chamber that isn't a matter of public concern, and I would think everything at OSHA and everything at... look, I'll... let me put my question to you, because you're going to make an argument that I don't think is too widely shared; namely, that Pickering decides this case.

If that's your argument, I'd like to ask you a question based on the assumption Pickering does not decide this case.

And it seems to me that Pickering involves a case in which it's both a matter of public concern and outside the scope of employment.

Mr. Robin-Vergeer: --Right.

Justice Breyer: And here we have a case that is a matter of public concern, but inside.

Mr. Robin-Vergeer: Right.

I--

Justice Breyer: So, in those circumstances, I want to know how you believe the first amendment requires us to decide this case.

And as I read this case, in the record, we have one individual, your client, who looked at an affidavit.

The affidavit said that the deputy sheriffs were trying to locate where a vehicle that was chocked up came from.

They saw tire tracks.

The tire tracks went back to a fence at the end of a long driveway.

So, I looked in the record.

I couldn't find the affidavit.

So, I assume that's what it says.

And I wanted to know what the deputy sheriff said.

What they said is that your client agreed that there were tire tracks.

There were tire tracks that did not go the whole length of the driveway, but, rather, tire tracks near the house, where they got the search warrant for.

And, they added, that... the deputies... that there was rocks broken up.

All right.

So, we have two sides to this argument: the deputies, who might reasonably contend that they did nothing wrong; your client, who thinks they were lying.

And we also have a letter that your client wrote, where he said that these deputies are grossly inaccurate and clearly misleading.

Suppose his supervisor goes to him and says,

"I think that that letter is not the right tone. "

"Maybe you're right, maybe you're wrong; maybe they're in good faith, maybe they're not. "

"And so, if you don't change that tone, I'm going to discipline you. "

All right?

Now, that's my hypothetical, which seemed to me, perhaps, very much like this case.

How, in your opinion, does the first amendment handle such a matter?

Mr. Robin-Vergeer: --If the supervisor told Mr. Ceballos that there was something wrong in the manner in which he conveyed his speech, and told him to revise the memo, that would have been... he would have been well within his rights to do so.

Bear in mind that there's never been an argument here that there was anything inappropriate about Mr. Ceballos's speech, that he exercised poor judgment, that there was anything disruptive about the manner in which he communicated.

The head of the office--

Justice Kennedy: But I don't under--

Mr. Robin-Vergeer: --actually said--

Justice Kennedy: --I understand the ultimate answer you gave the hypothetical.

I don't understand the principle you're following.

I mean, it's a matter of--

Mr. Robin-Vergeer: --It's--

Justice Kennedy: --you would agree this is a matter of public concern.

Mr. Robin-Vergeer: --Yes.

Justice Breyer: Which is what I'm looking--

Mr. Robin-Vergeer: Yes.

Justice Breyer: --for.

I'm looking for--

Mr. Robin-Vergeer: It is--

Justice Breyer: --a standard.

Justice Kennedy: But we don't have a standard.

Mr. Robin-Vergeer: --The principle is that an employer... we agree with the position of the United States, that the employer has the ability to dictate how an employee carries out his duties.

In a case where the employee--

Chief Justice Roberts: But in Justice--

Mr. Robin-Vergeer: --is insubordinate--

Chief Justice Roberts: --in Justice Breyer's hypothetical, if the employee filed a lawsuit claiming a violation of his first amendment rights, you would say that could not be thrown out, on summary judgment, on the ground that the speech was within the scope of his employment.

Mr. Robin-Vergeer: --It would be not on that ground.

Chief Justice Roberts: No.

Mr. Robin-Vergeer: The reason it would be thrown out in summary judgment would be because the employer had a different reason for taking retaliatory action--

Chief Justice Roberts: Well, that would--

Mr. Robin-Vergeer: --against the employee.

Chief Justice Roberts: --be a dispute of fact, so it probably wouldn't... so it wouldn't be thrown at summary judgment at all.

Mr. Robin-Vergeer: Virtually all of these cases are able to be disposed of at summary judgment.

And you have, basically, 20 years of litigation in the circuit courts to look at where--

Justice Breyer: Look--

Mr. Robin-Vergeer: --the problems that are being posited haven't materialized.

Justice Breyer: --I'm not making my question too clear.

I'm, imagine, the district judge.

I get just the facts I described to you.

Your client, who's very upset, says,

"This is the most unreasonable thing that ever happened. "

"They were trying to prevent me from communicating with the judge. "

"I'm the one who saw the sheriffs. "

"They didn't. "

The other side says,

"We think it's reasonable what we did. "

My question to you is, What standard does that judge apply under the first amendment?

What does he do?

Mr. Robin-Vergeer: The judge looks first at whether the speech is on a matter of public concern.

And if it's a dispute over Government misconduct, it would meet that threshold.

Second, the court would proceed to a Pickering balance and would say the employer's actual reason for retaliating or taking action would be because of the... you know, the tone or the message or because it was a disagreement, and the supervisor's views ultimately prevail.

And so, that's how it would be--

Justice Kennedy: So, the Federal--

Mr. Robin-Vergeer: --analyzed.

Justice Kennedy: --Federal courts supervise the constant dialogue that is the everyday routine practice in every governmental agency, local and Federal, in the United States.

Mr. Robin-Vergeer: With respect, no.

These cases are not that hard to dispose of at summary judgment.

Most actions that employers take against the employees are not because of the employees' speech anyway, it's because of how they carry out their job functions.

Justice Ginsburg: But that would be something that would have to go to trial, to prove that the... that the employee was incompetent.

Mr. Robin-Vergeer: Respectfully, I don't... I don't think that most of these cases... they don't go to trial, most of them.

They're... of course, there are some trials, but that is not the way most of these cases are handled.

And, besides that, adding an extra test, another preliminary hurdle, wouldn't change the litigation burden.

Instead of it being the Connick Pickering test, it would be Connick Pickering Ceballos test.

And then the question would be, Was the person doing their job?

How do you decide that?

Is it in his job description?

Is it a matter of custom and practice?

What if he's doing extra credit work to build up goodwill with his employer, but it's something that's not--

Justice Kennedy: Well, in--

Mr. Robin-Vergeer: --ordinarily required?

Justice Kennedy: --in this case, the supervisor said,

"There can't be... can't be tracks on asphalt, so you're probably right. "

Then he finds out that it's a tire rim, and of course the rim makes a... so we have to find out this at discovery... at the discovery stage of a lawsuit?

Mr. Robin-Vergeer: As long as he's made an... as long as he's made allegations or spoken in good faith in their... and it isn't demonstrably false, then he would clear that initial hurdle.

And there certainly was nothing suggesting that he spoke in bad faith or was obviously false, whether or not he was correct in his assessment.

And it wasn't just an argument over a tire rim.

He accused these... the deputy sheriff here of perjury.

It was a quite serious allegation of Government misconduct that was made here, and not, sort of, a mundane dispute over--

Chief Justice Roberts: Why doesn't--

Mr. Robin-Vergeer: --whether or not--

Chief Justice Roberts: --why doesn't Rust answer this question?

I mean, there, it was really... this issue was just outsourced by the Government.

They paid for the speech there, and we said that if you pay the piper, you get to call the tune.

And this is just an insourced... the same question.

Mr. Robin-Vergeer: --Ceballos was not speaking on behalf of the Government when he went to his supervisor.

That was an internal communication to his supervisor reporting--

Chief Justice Roberts: He was writing a memo about why the case should be dismissed.

Wasn't--

Mr. Robin-Vergeer: --Right.

Chief Justice Roberts: --that part of his job?

Mr. Robin-Vergeer: It was part of his job, although I... I'd quibble with the idea that it was required by his job.

But it was part of his job.

And, in doing so, he spoke to the Government, not as the Government.

A better analogy with respect to Rust would be if the doctor in Rust... let's say it's a doctor at a public university hospital, and the doctor was told that the policy is not to engage in abortion counseling.

And he wrote a memo to the supervisor saying,

"This is a terribly policy. "

"This is inhibiting our ability to counsel my patients and for me to do my job correctly. "

That memo would not be the Government's message.

And Ceballos's memo here to his supervisor was also not the Government's message.

But I want to... I want to get--

Chief Justice Roberts: Well, why is that?

In the... in your hypothetical, the doctor is... it's not his job to challenge the restriction on the Government grant, but that's what he's doing, so that's not part of his job.

Here, it's part of Ceballos's job to explain why the case should be dismissed, and that's what he wrote in his memo.

Mr. Robin-Vergeer: --But this is a very malleable and manipulable concept, what's part of a job.

I mean, for a doctor to talk to his supervisor about a restriction that he feels is inhibiting his ability to counsel his patients is as much part of his job as a prosecutor going to his supervisor and saying,

"There's government misconduct in this case, and we need to do something about it. "

Just like a teacher in the Givhan case, going to her principal, a conference between a teacher and her principal about whether there's racial... racially discriminatory practices in the school would be part of a teacher's job, complaining about something that affects her students.

Chief Justice Roberts: What do you do with your friend's response to that, that in Connick the Court characterized Givhan as involving a case of a citizen complaining about a particular practice?

Mr. Robin-Vergeer: Well, I think that underscores the point, that the employee in Givhan was speaking both as an employee and as a citizen, and these roles are not mutually exclusive.

You can be both.

There's no artificial distinction that the Court has drawn here.

And where a Government employee comes forward and reports misconduct and puts himself at risk, he is doing just that, speaking in both capacities.

And--

Justice Scalia: We just shouldn't have said "as a citizen" in all of these cases.

We were just padding our opinion with unnecessary words.

Mr. Robin-Vergeer: --The court... the court always views the "as a citizen" language in conjunction with the... speaking on a matter of public concern.

And it seems to me that the court equated the two concepts.

But I want to get to why it is unwise and unjustified to draw the per se rule that petitioners are urging here.

For one, it essentially means that a public employee such as Ceballos has to go public in order to have presumptive first amendment protection.

Justice Ginsburg: But then he would be violating the internal rules of the workplace.

Mr. Robin-Vergeer: Correct.

Justice Ginsburg: Where it's giving his candid views... the search warrant... he's giving his own opinion.

But if he goes outside, he is violating a rule of the workplace.

And it would seem to me that there are certainly measures to be taken against him for that.

Mr. Robin-Vergeer: Correct.

It's a trap.

They don't tell you about what happened in the second case.

If Ceballos had taken suspicions of police misconduct and gone to the Los Angeles Times, they would have fired him.

And had he brought a case challenging that termination under the first amendment, he would have lost on under the Pickering balance.

The circuit--

Chief Justice Roberts: Do you think he should have lost under the Pickering balance, in that case, if he went public right away?

Mr. Robin-Vergeer: --Yes.

If he had evaded proper internal channels of communication, then the employer would be well within his rights to fire him for taking an action that's so disruptive in bringing... discrediting the office without even letting his own employer try to address the situation internally first.

Justice Souter: What if he does let the employer try first, and the employer does nothing, then he goes public?

Where does the Pickering balance come out then?

Mr. Robin-Vergeer: Closer question.

I think he probably still loses, but it's a closer question.

I think, at some point, if the magnitude of this... of the problem is so large... I mean, imagine in the Ramparts scandal situation if... which has been discussed in the briefs... if a prosecutor tried to deal with that within the DA's office, and failed to get any response, and then went public with the Ramparts scandal, something of such magnitude, a court perhaps would find their way.

But in the--

Justice Kennedy: What--

Mr. Robin-Vergeer: --individual--

Justice Kennedy: --what you're saying is, is that the first amendment has an office and a function within the confines of a Government agency that it doesn't have outside.

That's a curious calculus.

It seems to me that the first amendment has its most application when you talk to newspapers, when you talk outside.

That's what the first amendment's about.

The first amendment isn't about policing the workplace.

Mr. Robin-Vergeer: --The court held, in both Givhan and Rankin, that private communications on matters of public concern are still protected.

And it's... and there's very good reasons for that to be.

I mean, imagine an employee at FEMA who thinks that FEMA is not ready to handle the next hurricane, that it has problems in its disaster preparedness, and so that FEMA employee goes to his supervisor and says,

"We have problems here. "

"Here are the four areas in which we're not ready to handle the next hurricane. "

He gets fired, because the supervisor doesn't want to hear that.

It's critically important that public employees who have information, who know what ails the agencies that they work for, be able to find an avenue to communicate issues of public importance.

If that FEMA employee had gone--

Justice Scalia: Is any... is any duty of an employee in a... an agency devoted to service of the public... is any of his functions not a matter of public concern?

Mr. Robin-Vergeer: --Yes.

The standard isn't anything of public interest, it's something of legitimate news interest.

The court reiterated that recently in the Roe case.

The standard does... it's not a--

Justice Scalia: It's news.

This is a press... a press kind of a test.

Mr. Robin-Vergeer: --Newsworthy.

And it's the same test--

Justice Scalia: Newsworthy.

Mr. Robin-Vergeer: --the court has applied in invasion of privacy contexts.

It's... although it's a broad standard, but it's also a well known and well established standard that--

Justice Ginsburg: I thought that's--

Mr. Robin-Vergeer: --courts are using--

Justice Ginsburg: --what Connick was about, that there are things that are said in the workplace that are of no public interest.

They're personal gripes.

Mr. Robin-Vergeer: --Correct.

The line the court was drawing in Connick is between the personal and the public.

The court said that, had the prosecutor in that case come forward had... to bring to light actual potential wrongdoing, a breach of public trust, the court suggested strongly that that would have been a matter of public concern, and that the court would then--

Justice Scalia: So--

Mr. Robin-Vergeer: --have proceeded to the Pickering balance.

Justice Scalia: --so if an employee... I really don't understand it... an employee comes forward with some scurrilous information about a family member of his boss, who is a public figure, and his whole families are public figures, which would be picked up by the press, that would be a matter of public concern?

Mr. Robin-Vergeer: If he's talking--

Justice Scalia: Gee, I never understood that that's what the test was.

I thought this was a matter that deals with the welfare of the public, rather than... rather than the welfare of the press.

Mr. Robin-Vergeer: --Two things.

One is that if the public employee is basically reporting something corrupt in the--

Justice Scalia: Well, that I understand.

Mr. Robin-Vergeer: --in the workplace.

Justice Scalia: That's the welfare of the public.

Mr. Robin-Vergeer: Correct.

And--

Justice Scalia: No, he's--

Mr. Robin-Vergeer: --in Government--

Justice Scalia: --he's just saying, you know, his boss's wife, a mayor of a big city, is running around with somebody.

Okay?

And that's picked up by the press.

It's there on the gossip pages.

She's a public figure.

You say that would be covered by this.

Mr. Robin-Vergeer: --The test the court enunciated in Connick is public, social, or... excuse me... political, social, or other concerns is up to the community.

If it's something that would be of legitimate news and--

Justice Scalia: Anything that would get in the press.

That's it.

Mr. Robin-Vergeer: --Then potentially--

Justice Scalia: Wow.

Mr. Robin-Vergeer: --But it has to be legitimate news interest.

And the court... the courts have not usually taken idle gossip to meet that test.

Justice Breyer: We live in a world where people are leaking things all the time.

And there are thousands of things that are in the public interest every day.

But what's bothering me is, while I see the Government's rule as protecting the interests of the employer, it's very hard for me to believe that never is there an instance where the first amendment offers protection.

But the only choice you've given me is a rule that says every dispute of the public interest is going to go right into constitutional litigation.

And I don't like that either.

So, am I hopelessly--

Mr. Robin-Vergeer: No.

Justice Breyer: --forced to choose which is the lesser of the evils, or is there some middle approach that gives discretion to the Government, but doesn't allow them to exceed that discretion in a certain category of cases?

If so, what?

And--

Mr. Robin-Vergeer: Certainly--

Justice Breyer: --how would you phrase it?

Mr. Robin-Vergeer: --at a minimum, a report of Government misconduct by an employee to his supervisor, at a minimum, should be treated as meeting whatever threshold the court establishes.

And there's something that all the all circuits that have addressed this point agree, that whistleblower types of speech is of paramount public--

Justice Kennedy: So, we do this--

Mr. Robin-Vergeer: --concern.

Justice Kennedy: --so we do this as a... so we do this as a matter of what is sound management principles for a Government agency?

How does that relate to the first amendment?

Mr. Robin-Vergeer: Because Government misconduct goes to the very heart of Government accountability and the public's ability to hold officials accountable when there is--

Chief Justice Roberts: But Government misconduct... if I get a memo from a law clerk that says, "Justice So and So's jurisprudence is wacky", that goes to--

[Laughter]

--that goes to Government misconduct, under your theory, right?

And I fire them, because I think that's not appropriate to put in a memo.

Mr. Robin-Vergeer: --But if--

Chief Justice Roberts: They have a first amendment claim, right?

Mr. Robin-Vergeer: --Well, they have a first amendment interest in their speech, but they have no claim, because if the... if you fired them just because--

Justice Scalia: Nobody's wacko here.

I mean, it's plainly--

[Laughter]

--plainly false.

Mr. Robin-Vergeer: --You know, it would depend why... it would depend why you fired them.

Chief Justice Roberts: Well, I disagree with it.

They think it's... whatever... unprincipled, wrong.

They write me a memo, and I say,

"Don't write me a memo like that. "

And they write me another one, and then I fire them.

Mr. Robin-Vergeer: All right.

But if you're firing them because you think they've exercised poor judgment in the... in the way that they've communicated, then it's--

Chief Justice Roberts: And they think it's Government misconduct because of the way cases are decided, and that they have a first amendment interest.

What could be more important than how the court decides cases?

And that violates their first amendment rights.

Mr. Robin-Vergeer: --In the hypothetical you gave me, it doesn't... I mean, it doesn't sound like a serious claim of Government misconduct.

It sounds like more like an offhand remark with... which, if you thought it was inappropriate, you might be able to take action against that employee.

Here, we have a very grave allegation to public... of Government misconduct, not casually made.

I mean, the... Mr. Ceballos talked to--

Chief Justice Roberts: But there was--

Mr. Robin-Vergeer: --other people--

Chief Justice Roberts: --a dispute about that in this case, too.

I mean, it... under the supervisor's view, it may come down to simply whether there were tire tracks or tire rim tracks.

And that's not as serious, in one view, as your client thinks it's serious.

Mr. Robin-Vergeer: --My client carefully considered what the... what the allegations were in the case, and they talked to people in this office.

So seriously did the supervisors take it that they actually released somebody who pleaded guilty, who was in custody for seven months, and let them out on their own recognizance, because that's how seriously... what a problem they thought, in his office, they had with this... the affidavit.

It was only after the meeting with the sheriff's department where they, kind of, launched into him exactly like a public defender, did the tide turn.

So, we're not... it's not a casual dispute over tire tracks, or not tire tracks, in this case.

But getting back to Justice Breyer's question about drawing lines, I think that's just--

Justice Scalia: Your answer to Justice Breyer's... I was just going to jump in there... your answer to Justice Breyer's question is, look at... if you want to be sure that, in every case, you know, the good cases fall on this side, the bad cases fall on... he should buy your position that every case should go to a balancing test.

That will give you the perfection of first amendment application.

The absolute perfection.

Now, it'll cost a lot of money, and it'll, you know, interfere with a lot of employment things, but it will give you first amendment perfection.

Right?

I mean, that's the answer.

Mr. Robin-Vergeer: --There's an... with respect, I think there's--

Justice Breyer: Is that your answer?

Mr. Robin-Vergeer: --I'm not sure I can answer that.

[Laughter]

I'll take that as a rhetorical question.

But, to get back to Justice Breyer's question, there's also... I think this came up in... when my opposing counsel was talking, about this extra element present here, which is that there is an independent constitutional problem here, in that when you have a... police misconduct, you have someone whose right to fair trial are at stake, and you have a prosecutor who's trying to fulfill his individual ethical and constitutional obligation--

Justice Kennedy: Well, that--

Mr. Robin-Vergeer: --on top of it.

Justice Kennedy: --There would... in this case, unlike any other case I've seen in the employment area, there is a hearing in... before a court of general jurisdiction, who goes into this.

That's what the criminal trial is for.

And he did.

There was also a grievance proceeding.

Mr. Robin-Vergeer: Had Ceballos remained silent, however, then this speech would never have been aired, and police misconduct--

Justice Breyer: All right--

Mr. Robin-Vergeer: --would go unchecked.

Justice Breyer: --I've got... you've got me part of the way.

Now, I'm not saying I... I have to think this through, but you got part of the way.

You say here, there's an independent constitutional basis for the speech being permitted.

But, now, still within that, the Government agency has to have some authority to discipline a person, even there, because, after all, he might have been accusing these sheriffs of things that were really not justified by what they, in fact, did.

Or maybe he was right.

What about that part of the standard?

Do you want to say that the Government wins, as long as it behaved reasonably?

Do you want to say that the Government loses only if there was an abuse of ordinary employer discretion?

Do you want to say the Government... et cetera.

What do you want to say?

Mr. Robin-Vergeer: If the Government takes action because the employee has exercised... has done... carried out his job in an inappropriate way that reflects a lack of fitness or poor judgment and what have you, the employer's within his rights to do so.

The court acknowledged that in Pickering, it acknowledged that in Rankin.

That has never really been an issue in the court's cases.

And it's not--

Justice Breyer: All right.

Suppose--

Mr. Robin-Vergeer: --our position--

Justice Breyer: --we were to write this, hypothetically.

Indeed, the employer has broad discretion to discipline the employee for the manner... or whatever he does... even in such an area, but that discretion can be abused.

And, therefore, it is up to the judge to determine whether a jury could find such abuse of discretion here.

Mr. Robin-Vergeer: --Correct.

I agree with that standard.

Justice Souter: But that does--

Mr. Robin-Vergeer: That--

Justice Souter: --that does mean that potentially... as the Government says, potentially every case is at least going to get as far as summary judgment in court.

Mr. Robin-Vergeer: --That's already the case.

Almost all these cases go to summary judgment.

It's almost impossible to dismiss one of these cases on a pleading.

That's true even in the fourth circuit.

Justice Ginsburg: Well, you... it wouldn't be that way if the rule was that if it's employee speech on the job, it's not protected at all.

Mr. Robin-Vergeer: Respectfully, that's not correct.

Even in the fourth circuit--

Justice Ginsburg: No, that's the argument that's being made here by both the--

Mr. Robin-Vergeer: --I understand that, but that argument is unfounded.

Even in the fourth circuit, which has come closest to adopting the per se rule the petitioners are asking for, district courts... and there's a case we cited in our brief, Echtenkamp... it's from the eastern district of Virginia... where the court said, in trying to decide,

"Did the employee speak as a citizen or as an employee? "

this is going to take factual development.

We can't decide this on the pleadings.

It's going to--

Justice Souter: Okay, do--

Mr. Robin-Vergeer: --have to go to summary judgment.

Justice Souter: --do we know how many cases of this sort there are?

Mr. Robin-Vergeer: I can only say based looking at published cases--

Justice Souter: Yeah.

Mr. Robin-Vergeer: --on Westlaw.

Justice Souter: Yeah.

Mr. Robin-Vergeer: There seem to be around 60 or 70 court of appeals cases--

Justice Souter: Over what--

Mr. Robin-Vergeer: --a year.

Justice Souter: --period of time?

Mr. Robin-Vergeer: Each year, for the least five years, about--

Justice Souter: In--

Mr. Robin-Vergeer: --60 or 70 court of appeals cases.

Justice Souter: --in all of the circuits--

Mr. Robin-Vergeer: In all of the circuits.

Justice Souter: --that follow a ninth circuit kind of rule?

Mr. Robin-Vergeer: Yes, in all of the circuits.

Justice Scalia: That's court of appeals.

You really don't know how many district court judgments there may have been that didn't go up to the court.

Mr. Robin-Vergeer: There's around a hundred a year in the district courts that appear on Westlaw, each year for the last five years.

Justice Ginsburg: --There's one aspect of this case that no one has touched on.

The concurring judge, Judge O'Scannlain, said, this is what whistleblower statutes are supposed to handle, and that if we accepted your view of the first amendment coverage, the whistleblower statutes would be superfluous.

Mr. Robin-Vergeer: That's incorrect.

The whistleblower statutes, which are sort of a patchwork nationwide, protect, or at least they have the ability to protect, speech beyond what the first amendment does.

If you take the Federal whistleblower protection statute, for example, if an employee makes a protected disclosure, and an employer takes a prohibited action in response, there's no balancing.

The employee wins.

The causation burden is also lower.

The agency's on the hook for paying the money.

There's no immunity, and so on.

Justice Ginsburg: California does have a whistleblower statute.

Is that right?

Mr. Robin-Vergeer: It does.

Justice Ginsburg: And there was a claim made under it, but we're not told how it came out.

Mr. Robin-Vergeer: There wasn't a claim made under it.

Justice Ginsburg: There was not.

Mr. Robin-Vergeer: There was not a--

Justice Scalia: I... I'm--

Mr. Robin-Vergeer: --did not bring a claim under California whistle blowing--

Justice Ginsburg: He did... he--

Justice Scalia: --I'm not sure you've answered Justice Ginsburg's question.

Her question was, Don't whistleblower statutes cover this?

And your answer, if I understood it correctly, is, whistleblower statutes cover this, and a lot more.

That doesn't prove--

Mr. Robin-Vergeer: --Oh, I'm sorry, I--

Justice Scalia: --that doesn't prove--

Mr. Robin-Vergeer: --understood the question--

Justice Scalia: --that they don't take care of this problem.

Mr. Robin-Vergeer: --No, I understood her question to be whether they're rendered superfluous.

Whistleblower statutes are patchwork across the country.

Some would cover this kind of speech, some would not.

Justice Scalia: Some would not cover it.

Mr. Robin-Vergeer: Not all whistleblower statutes cover internal communications.

Some do--

Justice Ginsburg: --Some are quite narrow--

Mr. Robin-Vergeer: --some don't--

Justice Ginsburg: # of what they cover.

Mr. Robin-Vergeer: I'm sorry?

Justice Ginsburg: --Some of the whistleblower statutes are very specific and narrow--

Mr. Robin-Vergeer: Yes.

Justice Ginsburg: --of what they cover.

Chief Justice Roberts: Some of them--

Mr. Robin-Vergeer: Yes.

Chief Justice Roberts: --in fact, don't cover disclosures that are job related.

If it's the employee's job to blow the whistle on this type of thing, it's usually not covered by a whistleblower statute.

Mr. Robin-Vergeer: Well, no, that's not... that's not correct.

I mean, in... many of the statutes do cover internal, and some don't.

In some, you have to go to a legislature, or you have to go... take it to a certain outside organization or entity in order to cover it, and--

Chief Justice Roberts: I guess I'm--

Mr. Robin-Vergeer: --some internal--

Chief Justice Roberts: --thinking of the Federal law, where the idea is, if it's part of your job, you have the normal civil service job protections if you're being retaliated or discriminated against for doing your job, so you don't get the extra protections of the whistleblower law.

The only people who get it are the people who... it is not part of their job.

Mr. Robin-Vergeer: --The Federal circuit has interpreted the Federal whistleblower statute to narrow the protection, so if it's within your normal duties of employment, then it would excluded.

But if I could... if I can... just for a moment, I want to return... I've hinted... I've hinted at this somewhat, but I haven't... oh, I see my time's up.

Chief Justice Roberts: Yeah.

Thank you, Ms. Robin Vergeer.

Mr. Robin-Vergeer: Thank you.

Rebuttal of Cindy S. Lee

Chief Justice Roberts: Ms. Lee, you have one minute left.

Mr. Lee: Under our approach, we believe that many cases won't even be filed, because they won't be able to make a colorable claim that it is citizen speech.

This case, in its essence, is about whether a public employee has a constitutional right to perform his assigned job duties in such a way that is to the dissatisfaction of the employer.

In Pickering and in Connick, this Court contemplated first amendment litigation in a public employment context in the relatively rare circumstances in which adverse employment action was taken as a result of an employee's extracurricular activities.

Under the ninth circuit and the respondent's approach, the exception would become the rule.

It is our view that the ninth circuit has simply gone too far in giving a broad sweep for first amendment protection for any public employee speech, simply because it happens to be a matter of public concern.

As Judge O'Scannlain stated in his special concurring opinion,

"The time is right for this court to steer the drifting first amendment jurisprudence back to its proper moorings. "

Thank you.

Chief Justice Roberts: Thank you, Ms. Lee.

The case is submitted.

Print this transcript Transcript: 

IN THE SUPREME COURT OF THE UNITED STATES

1 GIL GARCETTI, ET AL., Petitioners, v. RICHARD CEBALLOS.

No. 04-473

March 21, 2006

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 1:00 p.m.

APPEARANCES: CINDY S. LEE, ESQ., Glendale, California; on behalf of the Petitioners.

EDWIN S. KNEEDLER, ESQ., Deputy Solicitor General, Department of Justice, Washington, D.C.; for the United States, as amicus curiae, supporting the Petitioners.

BONNIE I. ROBIN-VERGEER, ESQ., Washington, D.C.; for the Respondent.

PROCEEDINGS

CHIEF JUSTICE ROBERTS: We'll hear argument next in 04-473, Garcetti versus Ceballos.

Ms. Lee.

ORAL ARGUMENT OF CINDY S. LEE

ON BEHALF OF PETITIONERS

MS. LEE: Thank you. Mr. Chief Justice, and may it please the Court:

At its core, the first amendment is about free and open debate on matters of public importance. It's about citizens' rights to participate in public debate and contribute their personal opinions and views whether they are mainstream or not. The first amendment is not, however, about policing the workplace. It is not about constitutionalizing the law of public employment. Nor should it be. Yet, if the Ninth Circuit's approach is accepted or adopted, this is what it will do.

In this Section 1983 action, a deputy district attorney prepared a disposition memorandum, pursuant to his prosecutorial duties, setting forth the reasons why, in his prosecutorial judgment, the criminal case that he was supervising was likely to be dismissed. The fact that the supervisor did not agree with the content of that memorandum should not give the plaintiff a constitutional right to challenge adverse employment decisions that he claims were in response to the product of that memorandum.

There are no first amendment interests that are served when public employees are allowed to perform assigned job duties in such a way as to the disagreement of the public employer. Essentially, what the --

JUSTICE KENNEDY: Well, I --

MS. LEE: -- Ninth Circuit --

JUSTICE KENNEDY: -- I suppose the public might have an interest in knowing about this debate. I don't know if you can say there's no public interest served. It might be that there are other counterbalancing first -- interests, but I don't think you could say we have no interest in speech. This was -- this is a -- on its face, a rather interesting -- a rather interesting argument that they're -- that they're having.

MS. LEE: When --

JUSTICE KENNEDY: They're interested in criminal law, criminal procedure, et cetera, et cetera.

MS. LEE: Well, it's our position that when speech by public employees cannot fairly be said to be speech as a citizen, then the Government should have a presumptive right to manage its personnel affairs and internal --

JUSTICE KENNEDY: Well, that -- yes, that's something different. But your statement, that there's just no first amendment interest --

MS. LEE: Well, there's on core first amendment values that are furthered when public employers have to justify employment decisions that they make on a routine basis.

JUSTICE SOUTER: Well, why wasn't that equally true in Connick?

MS. LEE: Well, the difference in Connick is that the employee -- the prosecutor in that actions spoke more closely with a citizen, and the Government - -

JUSTICE SOUTER: Yes, but I mean that's --

MS. LEE: -- had --

JUSTICE SOUTER: -- that's a fine characterization, but I'm not sure that that helps us. In Connick, the one subject of the speech that was held to be protected was the speech questioning political pressure to help in campaigns and so on. The issue here that would arguably favor protection is the issue of calling public attention to lying by police officers in criminal cases. And it seems to me that the -- that if there's a public interest in political pressure, there's a public interest in mendacity in law enforcement.

MS. LEE: Well, if the employee is required to investigate or report that kind of conduct pursuant to their normal duties of employment, then that is speech that the employer should absolutely or presumptively have an ability to monitor.

JUSTICE SOUTER: Well, yes, but why?

JUSTICE SCALIA: Well, that's the difference, not the lack of public interest --

MS. LEE: That's --

JUSTICE SOUTER: Yes.

JUSTICE SCALIA: -- that you're --

MS. LEE: -- absolutely right.

JUSTICE SCALIA: -- pointing to, is that in one case he is making this statement as an employee; and you say the employer, if it's a stupid statement, ought to be able to fire him for it. In --

MS. LEE: That's correct.

JUSTICE SCALIA: -- the other case, he's making the statement as a member of the public. And what the first amendment is all about is that we allow stupid statements to be made. Right?

MS. LEE: If it's not part of -- if it's -- if it's not part of your core job duties that you -- that employers should evaluate.

JUSTICE SOUTER: No, but it may well -- I guess the point that I'm trying to get at -- and it goes back to your original public-interest issue -- is, let's assume -- as Justice Scalia's hypo had it, let's assume that the statement made by the employee on the subject within job duties -- case like this one -- is, in fact, a "stupid statement." Let's assume it's wrong, it's inaccurate, whatnot. The issue is not whether an employer, it seems to me, should, if that turns out to be the case, be able to fire. The issue, it seems to me, is whether, if it is not stupid, it should be totally unprotected, so that the employer could do anything, even if it's an accurate statement. And my understanding is that your argument on public interest was an argument that says, even if it's accurate and they were lying and so on, that there should be no protection. Am I -- and do I understand you correctly?

MS. LEE: Well, our position is, whether or not the prosecutor in this case made an accurate statement during the performance of his job -- so, in other words, if his disposition memorandum -- if the employer accepted it and agreed with it, and the case didn't go any further, there wouldn't be a basis of first amendment, because normally he is acting pursuant to his job duties and it's up to the employer to evaluate whether or not he's adequately performing those job --

JUSTICE SOUTER: Sure, but take --

MS. LEE: -- duties.

JUSTICE SOUTER: -- take the case in which the employee says, "It was accurate." The employer says, "No, it was stupid. You got everything wrong." I take it, in -- your position is that regardless of whether the employee got it right or not, there shouldn't be protection, because it's within job duties. Is --

MS. LEE: Right. It --

JUSTICE SOUTER: -- that correct?

MS. LEE: -- should not be protected under the first amendment.

JUSTICE SOUTER: Okay.

MS. LEE: That's not to say that the public employer is free from being challenged with regards to the employment decision. It may be a matter for the employee to seek, through the grievance procedure, that -- like Mr. Ceballos did initially, or even pursue it to civil service remedies. And those are the type of decisions that the personnel in those departments are more ably, I think, to decide.

JUSTICE SCALIA: Or he could go public, I assume. He could say, "I got fired for saying this. And this was true." Right? Take it to the press. The press would love it.

MS. LEE: If his job --

JUSTICE SCALIA: Right?

MS. LEE: -- is not -- if that speech was not required to be kept --

JUSTICE SCALIA: I'm assuming it was --

MS. LEE: -- internally.

JUSTICE SCALIA: -- not required to be kept - -

JUSTICE ALITO: But if he -- if it's part of his job to speak publicly, then he has no -- things that are said publicly in the performance of official responsibilities have no first amendment protection?

MS. LEE: In our view, no. If it's a job -- if the public employee's assigned job duties is to, on behalf of the Government or the employer, speak to the public about certain things that are going on in the office, and he happens to get disciplined for it, that wouldn't pass our step.

JUSTICE ALITO: So, what if the employer tells the employee to go out and lie? There's no first amendment protection if the employee, instead, tells the truth?

MS. LEE: Well, I don't know if that's a -- if that's a detailed enough hypothetical. I mean, if the employee's core job duties are to report X, Y, and Z, and that employee goes out to the public and reports X, Y, Z, E, and F --

JUSTICE KENNEDY: Well, no, that's not --

MS. LEE: -- I think that's --

JUSTICE KENNEDY: -- that's not -- that's not the hypothetical. So, suppose that a supervising district attorney tells the deputy district attorney, "Go in and make a misrepresentation to the court, or conceal evidence," or whatever --

MS. LEE: Well, the question would be if he's --

JUSTICE KENNEDY: -- and he refuses to do that, or he goes in and he says the opposite, he tells the truth, and he's fired. What result?

MS. LEE: Well, I think the plaintiff could argue that, "That's not my core job duties. My job duties is to" -- if it's a prosecutor, "is to make statements" --

JUSTICE KENNEDY: Oh, so --

MS. LEE: -- "pursuant to" --

JUSTICE KENNEDY: -- so you're saying that there's an exception to your rule, so that if, in this case, he has a -- he has a defense if he said, "Well, it's my duty to call it as I see it"?

MS. LEE: Absolutely --

JUSTICE KENNEDY: Then --

MS. LEE: -- not.

JUSTICE KENNEDY: Well, then, if that's so, you ought to remand this case.

JUSTICE SCALIA: Well, sure you'd agree with that, if it's his duty to call it or -- just as it's the duty of a -- of a lawyer not to lie to the court. If there was a similarly clear legal duty for him to say something, you'd say that was part of his job description, right?

MS. LEE: That would be the required assignments of his job.

JUSTICE KENNEDY: And -- and I suppose, in this case, in the hypothetical we propose, that the California courts and the California bar would have disciplinary mechanisms against the senior attorney who hypothetically told the junior attorney to mislead.

MS. LEE: Well, that would be an issue of fact.

JUSTICE KENNEDY: Does California have, or have not, disciplinary procedures in the hypothetical case where a senior attorney who tells a junior attorney lie to the court --

MS. LEE: They do.

JUSTICE KENNEDY: All right.

JUSTICE GINSBURG: What is the --

JUSTICE ALITO: Well, what if it's --

JUSTICE GINSBURG: -- what is the California remedy? Let's say his boss says, "Don't turn over Brady materials."

MS. LEE: And the employer goes ahead and turns it over?

JUSTICE GINSBURG: Yes.

MS. LEE: If the boss makes a determination that, "This is not Brady materials. I don't want disclosed," and the employee goes ahead and discloses it, our position is, that would not be protected first amendment speech.

JUSTICE GINSBURG: What about -- you were talking about public speaking. There was, as I remember, a talk that was given to the Mexican-American Bar Association, and that was not something that his employer required him to do, but he --

MS. LEE: No, it wasn't. And it's not part of this lawsuit, because there's no dispute that the communication at issue in this case is that disposition memorandum that he prepared purely pursuant to his prosecutorial duties.

JUSTICE GINSBURG: But would have a 1983 case if he were disciplined or disadvantaged in the workplace because of the talk that he gave to the Mexican-American Bar Association in which he criticized DA office policies?

MS. LEE: Then our position is, it gets past step one, because it's not normally something that a prosecutor is required to do, and it would be subject to a balancing --

JUSTICE KENNEDY: Pickering balancing, I take it.

MS. LEE: Correct.

JUSTICE SOUTER: But I thought -- correct me if I'm wrong, just as a matter of fact -- I thought his 1983 claim listed the speech to the Mexican-American Bar Association as one of the reasons that he was demoted, or whatever it was, transferred.

MS. LEE: It was initially alleged, but, through the course of discovery, the focus of it was a disposition memorandum, because by the time he went to the Mexican-American Bar Association, he had already been disciplined, so there is no causation between his public speech to the Mexican Bar Association and the disciplinary actions that were --

JUSTICE SOUTER: Well, the --

MS. LEE: -- are at issue.

JUSTICE SOUTER: -- the focus may have changed, but, I mean, he hadn't dropped the -- he hadn't dropped the claim that that was one of the causes --

MS. LEE: Well, in --

JUSTICE SOUTER: -- of the --

MS. LEE: -- in essence, he did, when we --

JUSTICE SOUTER: Did he?

MS. LEE: -- when we went to the summary judgment motion. And that's why the District Court was very clear that the issue --

JUSTICE SOUTER: Okay.

MS. LEE: -- in this case was the communication in the disposition memorandum. And that was -- it was undisputed that that was purely pursuant to his prosecutorial duties --

CHIEF JUSTICE ROBERTS: The Court --

MS. LEE: -- and --

CHIEF JUSTICE ROBERTS: -- the Court of Appeals did --

JUSTICE SOUTER: Okay.

CHIEF JUSTICE ROBERTS: -- the Court of Appeals specifically did not address the Mexican- American Bar Association speech. It focused only on the memorandum, correct?

MS. LEE: Correct.

JUSTICE KENNEDY: And you concede that's Pickering balancing, anyway.

MS. LEE: Well, in -- to the extent that he's alleging that if that's -- "I went to the Mexican- American Bar Association, and I alleged -- or I made statements that there were some improprieties in the district attorney's office," that would probably get past step one and the matter of public concern, and then the question would be whether or not his interest in speaking as a citizen outweighed the interests of the Government.

JUSTICE SOUTER: But let me -- let me raise this question. If, in this case, he gets past step one because of the Mexican Bar Association speech, and if, as you suggested in answer to a question a little while ago, that anybody could go public and get at least past step one of Pickering, what is to be gained by the extremely -- well, strike the "extremely" -- what is to be gained by the restrictive view that you take that if he doesn't go to the Bar Association, or doesn't go public, there's no protection at all? In other words, it seems to me that the public is being protected in a way subject to an immediate end run.

MS. LEE: Well, I think what Your Honor is really asking is, if the plaintiff in this case had taken his disposition memorandum, and, rather than give it to his supervisor, which what he -- what he was required to do, he went to the public and gave it to them on a pending case, I don't necessarily think that would be protected under Pickering, as well.

JUSTICE SOUTER: But what if he simply goes to the public and says, "Look, there's Brady material here, and it should be turned over, and, instead, my boss is telling me to suppress it." That wouldn't be turning over his work product. And I took it, from what you said earlier, that, in that case, you would say at least he gets pasts step one of Pickering for the --

MS. LEE: Well, he certainly --

JUSTICE SOUTER: -- newspapers --

MS. LEE: -- wouldn't be speaking in his capacity as a prosecutor, but that doesn't necessarily mean that his interests would be outweighed by the employer's interest. In --

JUSTICE SOUTER: Oh, he might -- he might ultimately lose, just the way, on all issues but one, the employee in Connick lost. That's quite true. But at least --

MS. LEE: And --

JUSTICE SOUTER: -- there would be a claim to go through the balancing --

MS. LEE: Well, in --

JUSTICE SOUTER: -- exercise.

MS. LEE: -- in some respects, if you're talking about job-required speech that you are -- part of those duties, and the function, is to keep it internally until at least there's some decision by the supervisor, and, rather than do that, you send it to the press or leak that information out, I think a governmental disruption in efficiency can be presumed there. So, I don't think it's as -- I don't think it's as clear that that -- that Mr. Ceballos would have ultimately prevailed under the balancing. I mean, if he had taken the --

JUSTICE SOUTER: Yes.

MS. LEE: -- the speech externally, I think there -- that he ultimately would have lost, as well --

JUSTICE SOUTER: Oh, I understand your point.

MS. LEE: -- because there is --

JUSTICE SOUTER: You're not saying he would win on Pickering balancing, but he would at least get to the point of going through the balancing exercise.

MS. LEE: And ultimately the result would be, there's no protected --

JUSTICE SOUTER: Maybe.

MS. LEE: -- first amendment speech.

JUSTICE SOUTER: Yes.

JUSTICE ALITO: How do you go about determining whether something falls within somebody's job duties? How specifically does that have to be set out?

MS. LEE: If it's a function of the person's job -- assigned job duties. So, the -- you look at the speech at issue. And here is -- it's a disposition memorandum that was purely pursuant to what the -- what his duties required. He's -- it's normally a function that the employer would take into consideration for things like promotions --

JUSTICE ALITO: And you have to look at --

MS. LEE: -- or demotions.

JUSTICE ALITO: -- you have to look at a job description? And does it have to be listed specifically in a job description? Could there ever be things that it's understood that are things that any employee ought to be concerned about, such as very serious wrongdoing within the office?

MS. LEE: I mean, there could be situations where there's a general code of conduct by all employees; you know, employees who feel that they've been, you know, harassed, sexually harassed, or feel that others are, should report that. But that may not be that person's assigned job duties. In other words, that person is not assigned to investigate and report those type of things.

JUSTICE SCALIA: Of course, if --

MS. LEE: And --

JUSTICE SCALIA: -- if you adopt a principle that every employee ought to -- ought to report to his superiors known wrongdoing by his co-workers, and that that's part of his job duties, you -- then you always cut off the ability of that employee to go public, right? I mean, that's a -- sort of an expanding category, "job duties."

MS. LEE: Well, it would be assigned job duties, things that normally the employer would take into consideration for things like terminating or promoting.

I'd like to reserve the remainder of my time for rebuttal.

CHIEF JUSTICE ROBERTS: Thank you, Ms. Lee.

Mr. Kneedler.

ORAL ARGUMENT OF EDWIN S. KNEEDLER

FOR THE UNITED STATES, AS AMICUS CURIAE,

SUPPORTING THE PETITIONERS

MR. KNEEDLER: Mr. Chief Justice, and may it please the Court:

Much of the work of public employees is performed by speaking or writing, and much of that work concerns matters of public interest. Under the Ninth Circuit's decision, public employees engaged in such work have at least a presumptive first amendment right to perform their jobs as they see fit.

That conclusion rests on a fundamentally mistaken view of the first amendment. When the Government pays for somebody to do its work, it has an absolute right to control and direct the manner in which that work is performed. That is a basic rule of agency law, and insofar as Federal employees are concerned, it's a basic rule of our constitutional structure. Article II of the Constitution gives the President the power and responsibility to take care that the laws be faithfully executed. Effectuation of that power, and effectuation of the principle of accountability that it embodies, requires that supervisors in the executive branch be able to control and direct the work of their subordinates. The first amendment, which was adopted just a few years after the Constitution, was not meant to interpose the first amendment in that relationship between supervisor and subordinate or otherwise to regulate the internal affairs of the executive branch. That is the function of civil service laws adopted by the legislature and internal executive branch directives taking into account the relative costs and benefits of certain types of regulation. And finally --

JUSTICE SOUTER: No, you take the position, then, that -- going to the earlier hypothetical that somebody brought up, that, say, in a Brady case, if the --if the Federal prosecutor believes there was Brady material that -- and let's assume he's correct, just to make it a simple case -- that there's Brady material to be turned over, and the U.S. attorney says, "Do not turn the Brady material over," that if the -- if the U.S. -- if the -- if the prosecutor tells this to a court, that he can be disciplined?

MR. KNEEDLER: Well, there would, no doubt, be other restrictions. Justice Kennedy mentioned ethical rules. Under the Federal whistle-blower statute --

JUSTICE SOUTER: Oh, I'm sure --

MR. KNEEDLER: -- there would --

JUSTICE SOUTER: -- that's so --

MR. KNEEDLER: -- be a restriction.

JUSTICE SOUTER: -- but what about, you know, the basic first amendment --

MR. KNEEDLER: The first amendment would not be the -- would not be the source of protection. Whether there would be some argument that, if the employee could not be fired, it would be an unconstitutional condition to require him to put his job at peril for committing a due process violation or something like that, whether there would be a claim like that, that would be a different matter. But the first amendment --

JUSTICE SOUTER: But why would you recognize a due process violation if you wouldn't recognize a first amendment violation?

MR. KNEEDLER: Because the first amendment does not address speech that an employee undertakes in the performance of his duties.

JUSTICE SOUTER: Well, neither does due process.

MR. KNEEDLER: No. No, I was just suggesting there would have to be some unconstitutional condition.

Well, the due process --

JUSTICE SOUTER: Yes, but to get to the unconstitutional condition, wouldn't you normally look to the first amendment?

MR. KNEEDLER: My point is that the due process -- due process clause does address the conduct at question, which is the requirement that exculpatory material be turned over to the defendant. And so, the question is that the employee would be put in a position where he would -- where he would be instructed not to perform what he understood to be a constitutional violation. I think most civil service laws, most ethical rules, would take care of it. And, as I mentioned, the Federal whistle-blower statute, in 2302(b)(9), I think it is, has a provision that protects employees who refuse --

JUSTICE KENNEDY: And --

MR. KNEEDLER: -- to obey an order --

JUSTICE KENNEDY: -- perhaps, 1983, if you go the unconstitutional condition argument, and certainly in 1983 -- or arguably a civil rights prosecution against the senior who ordered --

MR. KNEEDLER: Yes, there would be -- there would be those sorts of restrictions. My only point is that the first amendment is not addressed to speech or writing that an employee undertakes in the -- in the -- in the course of his official duties. This --

JUSTICE ALITO: But isn't there this -- isn't there this anomaly in the position that you're advocating? It would seem to me that categories of employee speech that are most likely to be disruptive would be public speech that's outside of the employee's duties, or internal speech that is outside of the employee's duties. How much of a -- of a problem is it that employees are bringing first amendment claims based on largely internal speech that falls within their own job duties?

MR. KNEEDLER: I think that would be a huge problem, because it would effectively constitutionalize the day-to-day interactions between supervisors and subordinates within the Government, and put the Federal Courts in charge of overseeing that. Even if these cases might ultimately be disposed of on summary judgment, there would be discovery, there would be the burdens of the litigation. And in a case like this, where the -- where the Government is taking the position that the -- these actions were not even taken against the employee because of this disposition memorandum -- they say they had perfectly valid other reasons -- but this case exemplifies what the problem would be, is that the employee could identify something that he said or did in the course of his duties that involved speech and say, "That's the reason that I was disciplined."

JUSTICE ALITO: But are these going to be difficult cases under Pickering balancing? You have the case like this, where the employee, let's say, says to the prosecutor, "I think the case should be dismissed." The prosecutor says, "Well, I'm the supervisor, and I disagree. We're not going to dismiss the case." Typically, the employee wouldn't be disciplined for doing something like that. Now, if the employee persists and, you know, is insubordinate, there would be another basis for taking disciplinary action.

MR. KNEEDLER: Well, but in this case, if we look at what the Ninth Circuit said, for example, when it got to step two, it said that the employee could only be disciplined if the -- if the agency could show that there was disruption or reckless disregard for the truth. But when somebody is actually carrying out his job duties --not engaged in outside activities that may reflect back and be disruptive, but engaged in the job duties themselves, the employer has a right to insist on more than that the employee not be disruptive or reckless; he has a right to insist that -- the employer has a right to insist that the employee affirmatively contribute to the work of the office and exercise good judgment. And the -- and the supervisor has to be in a position to make judgments about whether that judgment was good or not.

JUSTICE ALITO: Well, is this going to lead to difficult problems in determining what falls within the job duties of a particular employee?

MR. KNEEDLER: I don't -- I don't think it -- I don't think it will, and certainly no more problems than the -- than this Court has wrestled with, and the lower courts have, in terms of what's a matter of public concern. I think it's a common inquiry to determine what a person's job duties are. And I think it's a very important place to have a clear line, just as there is a clear line with respect to matters of public concern.

JUSTICE ALITO: Suppose, in the memo here, the assistant district attorney had said, "I think that this deputy lied, and I think the deputy should be fired." Now, whether the deputy should be fired or not probably isn't within the job duties of this -- of this employee. So, would that be outside of your rule?

MR. KNEEDLER: No, I think it would probably be inside the rule. I think -- I would think, particularly for a -- for an assistant DA to make a recommendation about the consequences of illegal conduct would be within his -- within his job duties.

I also want to say that this Court's decision in Pickering, and in that line of cases, I think, fully support this, because, as this Court pointed out in Connick, this Court has repeatedly stated that the protection afforded by Pickering is for action taken as a citizen on matters of public concern. That "as a citizen" phrase was reiterated in virtually all of this Court's cases in the area. And the underlying principle is that --

JUSTICE STEVENS: But does the Givhan case fall within that?

MR. KNEEDLER: Yes. Yes, it does. But all the Court addressed in Givhan was the question of whether, if you take your concerns not publicly to the newspaper, but express them to the -- in that case, the principal, that you don't lose first amendment protection. But the Court did not address the question of whether those comments were within the scope of the employee's duties. And I think a reading of lower court's decision in Givhan indicates that they were not. She was an English teacher, and she was commenting to the principal about employment practices at the school. That would not have been within the scope of her employment. And then --

JUSTICE GINSBURG: But if she was the vice principal, that would be -- then it would come --

MR. KNEEDLER: I'm --

JUSTICE GINSBURG: -- within your --

MR. KNEEDLER: It might be -- it might be closer to that, yes. I think, again, it would depend if she was -- if she was vice principal for administration or something, I think -- I think it clearly would.

But the purpose of the Pickering line of cases is to protect employees when they go outside of their -- of their job, that they shouldn't be penalized for having taken a job to be able to participate in public affairs, as the Court put it in Pickering. That does not suggest that the -- that the employee brings the first amendment into the job workplace and can use it as a shield or a sword in the day-to-day interactions with his supervisors, and to do so would be constitutionalize, as I said, the day-to-day operations of employment. And this is a classic example, where somebody wrote a disposition memorandum in the course of --

JUSTICE STEVENS: And you're suggesting --

MR. KNEEDLER: -- in the course of those activities.

JUSTICE STEVENS: -- that a remark made internally could not provide the basis for discipline, but saying exactly the same thing publicly could. I mean -- or vice versa.

MR. KNEEDLER: Well, if it's made publicly in the capacity as a citizen, assuming the public -- it isn't a speech that he's making in the course of his duties -- if he writes something to the press, he's speaking in his capacity as a citizen. That doesn't mean that it would be constitutionally protected; it simply means that you get to step two of the Pickering balancing, because he's not carrying --

JUSTICE STEVENS: Well, I'm assuming --

MR. KNEEDLER: -- out the job duties.

JUSTICE STEVENS: -- a case in which it would be constitutionally protected. But you're saying if he says it publicly -- assuming we pass the balancing test -- that if he said the same thing to his boss directly internally, no protection.

MR. KNEEDLER: No, that -- at least not if it's part of his job duties. And I would think --

JUSTICE STEVENS: Which is a --

MR. KNEEDLER: -- ordinarily in that --

JUSTICE STEVENS: -- rule that would sort of encourage people to go public rather than --

MR. KNEEDLER: No, I mean --

JUSTICE STEVENS: -- exhaust their internal remedies.

MR. KNEEDLER: Two things about that. When he's saying it internally, he's doing his job. When he's going externally, he may be violating office policies.

CHIEF JUSTICE ROBERTS: Thank you, Mr. Kneedler.

Ms. Robin-Vergeer.

ORAL ARGUMENT OF BONNIE I. ROBIN-VERGEER

ON BEHALF OF RESPONDENT

MS. ROBIN-VERGEER: Mr. Chief Justice, and may it please the Court:

Petitioners contend that the first amendment provides no protection when the Government silences or punishes a public employee for speaking up on a matter of vital public importance in the course of performing his job, even if the Government has no legitimate employment reason for doing so. Such a sweeping rule would stifle speech that lies at the very core of the first amendment. Recognizing Richard Ceballos's claim in this case would not convert every public employment dispute into a constitutional case.

CHIEF JUSTICE ROBERTS: I think it's probably a bit much to say that the core of the first amendment is internal employee grievances or speech. And I think the concern on the other side is that you may -- as a lawyer, you may have a view of what the -- what Brady requires. Your superior may have a different view. And just because that disagreement exists doesn't mean that you have a constitutional right to continue to voice your view when your superior has reached a different decision.

MS. ROBIN-VERGEER: I agree with that. The first amendment doesn't bar the Government from disciplining employees for insubordination or poor job performance or for continuing or persisting in a matter once their supervisor's told them to stop. Where an adverse employment action's motivated by such legitimate employment reasons, there's no first amendment violation. But the Petitioners here have not claimed any legitimate interest in punishing Ceballos for what he said, nor have they made the case --

JUSTICE KENNEDY: Well, their -- the interest they claim that of supervising their employees.

MS. ROBIN-VERGEER: That is not correct. In this case, the Petitioners --

JUSTICE KENNEDY: I mean, that's the interest that we're concerned with, is of having the Government have the capacity to be able to control the speech of its employees so they could have a consistent policy and so that it can explain to the people what it's doing.

MS. ROBIN-VERGEER: They've articulated that as an abstract principle that has no application on the facts of this case, because on the --

JUSTICE SCALIA: Well, why --

MS. ROBIN-VERGEER: -- facts of -- sorry.

JUSTICE SCALIA: Go on. I'll let --

MS. ROBIN-VERGEER: On the facts of this --

JUSTICE SCALIA: -- let's hear your --

MS. ROBIN-VERGEER: -- case, they never claim that Ceballos did anything improper, that he exercised poor judgment, that he was insubordinate. They just said, "We didn't retaliate." That was their defense of this case. And that presents a fact question for the jury.

JUSTICE KENNEDY: But you're the one that's asking us to adopt a rule. And I'm suggesting to you that there is an interest that's sacrificed by the rule that you request, and that is the Government's interest in regularity and consistency of its speech. They don't have to claim it on a case-by-case basis. You're the ones that are asking us to make this rule.

MS. ROBIN-VERGEER: With respect, I disagree with the characterization, because -- well, there are three reasons why Petitioners proposed per se rule, which would be unwise. And it is they who are asking for a per se exclusion where the Court has not previously adopted a per se exclusion. And the reason why it's unwise is that it will chill speech of paramount public importance by prosecutors and many other public employees. It will force many public employees to go public if they want any chance of constitutional protection, and it will lead to arbitrary and unworkable linedrawing regarding whether an employee's speech falls --

JUSTICE SCALIA: Well --

MS. ROBIN-VERGEER: -- within his job duties.

JUSTICE SCALIA: Because public employee unions are so weak? They're the only strong unions left in the country. I mean, really.

[Laughter.]

JUSTICE SCALIA: You need the Constitution to protect employees against things of this sort?

MS. ROBIN-VERGEER: Absolutely. The Court has recognized, in Pickering and in other cases, that the threat of dismissal from public employment is a potent means of inhibiting speech. Public employees who speak up within their workplaces about police brutality, falsification of evidence, disaster preparedness, and so on, should not be compelled to shade the reports and the recommendations and tell their superiors only what they want to hear or else face reprisal for their candor.

JUSTICE SCALIA: No, but neither should a superior be required to get a report from a subordinate that he thinks is way off base, just a result of poor judgment, thinking that there -- that there was a violation here, when there -- when there obviously wasn't, or using facts that were not sufficiently established in order to claim such a violation. Surely, the employer is entitled to say, "On the basis of this report, which you gave me, you're fired."

MS. ROBIN-VERGEER: That's absolutely --

JUSTICE SCALIA: Or -- you know, or --

MS. ROBIN-VERGEER: That's absolutely correct. And if, in this case, that judgment had been made by Ceballos's employer, that he had exercised poor judgment, that he was rash or reckless in his conclusions, then the employer would have had a valid basis for taking an adverse employment action against him. But that is not what happened in this case.

CHIEF JUSTICE ROBERTS: Well, but you're just hiding behind the fact that they claimed that it wasn't in retaliation. Your assertion still puts them in the position of having to defend a constitutional claim on a case-by-case basis every time there's a disagreement between a subordinate and a superior about, as in this case, what Brady requires.

MS. ROBIN-VERGEER: Well, actually, the disagreement -- there wasn't any disagreement. He came forward and exposed police misconduct. And his supervisors were on his side.

CHIEF JUSTICE ROBERTS: There was a disagreement about whether or not his memorandum accurately reflected, in an appropriate way, what was at issue there. There was a disagreement about the content of the allegations.

MS. ROBIN-VERGEER: I don't think it's important, for, maybe, purposes of this, to iron this out, but I -- respectfully, I don't agree with that characterization, because, even in the resolution of the grievance internally, the -- what they found in the grievance was that they took no adverse action against him because of what he said --

JUSTICE BREYER: That doesn't --

MS. ROBIN-VERGEER: -- in connection with this case.

JUSTICE BREYER: That isn't the point. I think the point is, at least for -- I think point is who is going to decide whether there was some justification here. And I read this memo. I thought that the DA had a pretty good claim, that the police didn't do anything wrong. And there's also an argument they did. All right. So, who decides that kind of thing? A constitutional court or a State, under its protection laws or whistle-blower statutes?

MS. ROBIN-VERGEER: No --

JUSTICE BREYER: And the argument that you have to face, I think, is that it will be very disruptive to have constitutional judges dive into this, when there are so many other remedies, and where the very act of their doing it, allowing discovery, allowing court cases, allowing juries, itself, will disrupt the Government. Now, if you say they give you no protection at all, I want to hear what you have to say as to what the standard is to separate the sheep from the goats.

MS. ROBIN-VERGEER: Okay. There are a few points embedded in the question, and I'd like to take them one by one.

With respect to the standard, the standard is, if the employer makes a judgment that the public employee has not performed his or her job properly or has been insubordinate, so long as that judgment isn't based on a censorial type motive, like, "We don't tolerate criticism of the sheriff's department," something like that, then the employer's judgment prevails. And I'm not suggesting that a District -- Federal District Court has license to second-guess that judgment, so long as that judgment's actually the judgment that was made. I mean, there's a pretext analysis that might be made in this case --

JUSTICE BREYER: The only cases that would go into court are cases where the employer says, "I have no reason at all for firing him"?

MS. ROBIN-VERGEER: Well, in a case like this, the county never came forward --

JUSTICE BREYER: But that's because --

MS. ROBIN-VERGEER: -- and said that --

JUSTICE BREYER: -- they think they have a better claim on the other part. I mean, if -- even if you're right in this one, I promise you, the next one will come along, and they'll say, "Of course we had a good reason for firing him. One, we didn't fire him for that reason. Two, if we did, we would have been justified," or whatever. So --

MS. ROBIN-VERGEER: But --

JUSTICE BREYER: -- if your standard is, the only cases that go into court under the first amendment are cases where the employer says, "I had no basis for doing anything to him whatsoever," then I think there will be few such cases, though you might convince me that that standard --

MS. ROBIN-VERGEER: Well --

JUSTICE BREYER: -- wouldn't do any harm.

MS. ROBIN-VERGEER: -- that's why I said that it would be subject to a pretext analysis. The employer, of course, might come back and -- and, post hoc, come up with a rationale for --

JUSTICE SCALIA: But that'll --

MS. ROBIN-VERGEER: -- why they did --

JUSTICE SCALIA: -- always be --

MS. ROBIN-VERGEER: -- what they did.

JUSTICE SCALIA: -- the claim. That'll always be the claim. They'll always say, "Oh, yeah, you said you did it because of that, but you did it because you're retaliating" --

MS. ROBIN-VERGEER: You know --

JUSTICE SCALIA: -- "for this or that." I mean --

MS. ROBIN-VERGEER: -- we're not operating in uncharted territory here. The rule that the Ninth Circuit has adopted has been the prevailing rule in the Circuits for years. And I just want to clarify something that came up in the last argument, where I cited some very rough statistics about the numbers of cases. There's a rough -- a rough cut at the universe of public employee free-speech cases, of which this type of case, where the speech is part of the job, is only a tiny subset. These cases are not dominating the courts, and you don't have all the litigation that is being --

CHIEF JUSTICE ROBERTS: Is that because --

MS. ROBIN-VERGEER: -- claimed would occur.

CHIEF JUSTICE ROBERTS: -- they're addressed -- is it -- they're addressed under State and Federal whistle-blower laws, or --

MS. ROBIN-VERGEER: No, that's -- actually gets me back to the second part of Justice Breyer's question, which is protection. And it's a complete hit-or-miss situation across the country. And just to respond to something that was said about the Federal Whistle-blower Protection Act, that statute has a gaping hole in it, as construed by the Federal Circuit, because the Federal Circuit has construed it to exclude protection for speech that is part of the employee's normal duties. So, in any case that would come up with a Federal employee, leaving aside what judicial remedies are even available for a Federal employee in this area, the Federal employee would be largely unprotected by the Federal Whistle-blower statute. And with respect to what the state of law is across the country, it's complete patchwork. Different types of speech are protected, there's huge holes in coverage. There is no --

JUSTICE GINSBURG: What about California, which was the State where this episode occurred? Was - - I think you mentioned that he did not make a claim under the State statute.

MS. ROBIN-VERGEER: That's correct. And it's sort of interesting that neither the Petitioners, the United States, or any of the amici have cited a California whistle-blower statute that would have been applicable to this claim. I, frankly, think that there was one that potentially might have been applicable, not cited by any of the parties, but the law was in flux, and it really wasn't all that clear. And that's -- and California's probably one of the better States, in terms of whistle-blower protections, compared to -- and we're talking about a local government employee, and the odds of protection -- it's just hit or miss across the country.

JUSTICE KENNEDY: Are you saying --

MS. ROBIN-VERGEER: The --

JUSTICE KENNEDY: Are you -- are you saying the California courts would tolerate a situation where a member of the bar told one of his employees to misrepresent to the court?

MS. ROBIN-VERGEER: If you're --

JUSTICE KENNEDY: The California courts --

MS. ROBIN-VERGEER: -- referring back to hypothetical --

JUSTICE KENNEDY: The California courts are certainly not tolerating -- and, in fact, this case was heard by a California court, and the -- and the judge, as I read the record -- it's not altogether clear -- seemed to agree with the -- with the police officers.

MS. ROBIN-VERGEER: The motion to reverse that was heard by a State Court judge was not run -- that hearing was not run by Ceballos. It was run by the defense lawyers in that case. And Ceballos's testimony was limited by the prosecution's own objection. So, you can't judge anything from how that disposition came out, whether the State Court judge thought it was -- the police had lied or not lied. And you can't judge anything by the way that hearing was conducted.

But I want to return to why it's so important that the Court not shrink first amendment activity in the workplace. It is of the utmost importance that public employees, who internally report matters of public concern, enjoy first amendment protection, and for two basic reasons. First, the public needs to have a Government of public servants who do their jobs honestly and with integrity, and not yes-men afraid to tell public officials the bad news. A per se exclusion of first amendment protection creates a powerful disincentive for deliberation within Government. The last time, I cited an example of a FEMA employee who was punished for saying to a supervisor that FEMA wasn't ready to handle the next hurricane. But the facts of this case are just as compelling, denying a first amendment protection for prosecutors who expose police misconduct. And his disposition memo wasn't just a prediction about whether -- how a judge would rule on a motion; he exposed police misconduct that --

JUSTICE SCALIA: Well, that's --

MS. ROBIN-VERGEER: -- was so --

JUSTICE SCALIA: -- that's not -- that's not established. That's not established at all. His supervisor obviously thought he didn't --

MS. ROBIN-VERGEER: I'm sorry, I didn't mean to suggest that -- the truth of that allegation may be open to question, but what is not open to question --

JUSTICE SCALIA: Yes, but it's a very serious allegation for somebody who's in the position that this employee was to make against police officers. And as I understood the case, the supervisor said, "Wow, I don't want loose cannons around down there who are accusing perfectly honest and respectable police officers of violating the law." Now, that --

MS. ROBIN-VERGEER: And --

JUSTICE SCALIA: -- hasn't been proven, either. But --

MS. ROBIN-VERGEER: Right. I --

JUSTICE SCALIA: But that is certainly a possibility. And I do not want to exclude the ability of a supervisor to fire somebody, if that possibility exists, without having to go through extensive litigation.

MS. ROBIN-VERGEER: With -- regardless of whether he was ultimately correct or not, there's no question, and there's no serious argument here, that he had a legitimate basis for believing that police misconduct had occurred. He conferred with his supervisors and his colleagues before writing the memo. Everyone agreed that there was a problem with the warrant. And they took his allegations so seriously that they released a defendant who had --

JUSTICE BREYER: Say it's a --

CHIEF JUSTICE ROBERTS: But if --

MS. ROBIN-VERGEER: -- been --

JUSTICE BREYER: -- borderline case --

CHIEF JUSTICE ROBERTS: -- none of that were true -- if none of that were true, he could still file his complaint. Presumably it survives a motion to dismiss, and it goes at least to summary judgment. And that's true in every case of a disagreement between a subordinate and a superior.

MS. ROBIN-VERGEER: That's true of every public employee government -- excuse me -- public employee speech case, period. Almost all of these cases go to summary judgment. They can't be dismissed at the pleading stage, by and large, because they require factual development. So, all that -- all that this per se rule does is add complexity and the need for greater factual development. It's not the magic bullet that the Petitioners seem to think it is. The Givhan case suggests the unworkability of drawing the first amendment line as what's part of an employee's job. Conferences between a teacher and her principal take in the same level of generality as writing a disposition memorandum --

JUSTICE ALITO: But what about the cases -- putting aside the clear-cut case where the employee's statement is either clearly correct or clearly incorrect, but what about the case where the objection to what the employee is doing is the manner of the speech? It's on the matter -- it's on the matter of concern, but the supervisor just thinks that it's being handled in a way that's ham-handed or indiscrete. Aren't they going to -- aren't these cases going to cause terrible litigation problems?

MS. ROBIN-VERGEER: No, they won't, and they haven't. If the employee -- employer has a concern about the manner in which it's communicated, that is a valid employment concern. I mean, suppose Ceballos had gone -- had a big meeting with --

JUSTICE ALITO: But under --

MS. ROBIN-VERGEER: -- sheriff's department - -

JUSTICE ALITO: -- then under Pickering --

MS. ROBIN-VERGEER: -- embarrassing them?

JUSTICE ALITO: -- the test is going to be whether the manner, which may be difficult to recreate, caused -- how much of a disruption it caused to the operations of the office.

MS. ROBIN-VERGEER: These -- you'd think that if there was that type of disruption and hindrance of the way public agencies were carrying out their missions by these kinds of cases, which have been around for a long time, that you'd see citations to them in the Petitioner's brief, in the United States brief. And their silence on this point is both deafening and telling, because, in fact, it has not been the problem that is being posited here, and this is not a new approach that we're talking about.

But getting back to the Givhan case, conferences between teachers and principals are a part of the teacher's job, and it's pure formalism to make the protected status of the Givhan teacher's speech turn on whether the employee manual says a teacher has to work to root out race discrimination. Or what if she was a part-time ombudsman who is charged to improve race relations in the school? Under their approach, you know, boom, it's not protected speech anymore, even though the underlying first amendment value is exactly the same. It also makes it completely subject to manipulation by the employer in making everything a part of an employer -- employee's job, in terms of reporting duties, which --

JUSTICE SCALIA: The first amendment value may be the same, but it -- but what is present is another value. And unless the person is going to go public, in which case the balancing occurs, and assuming there's no prohibition of it, that other value is a very significant one, the ability of public officials to run their offices.

MS. ROBIN-VERGEER: But here's the problem with going public. It's perverse to creating incentive for employees to go public, especially employees in sensitive position -- in a sensitive position. The first amendment consequences here are especially grave, because Ceballos had no realistic alternative channel for communication open to him. Had he gone to a blog, Web site, podcast, and so on, as Petitioners say in their reply brief, or held a press conference, or gone to Los Angeles Times, and so on, he'd be fired, and he'd lose any first amendment case that he brought. So, what avenue does a prosecutor who wants --

JUSTICE BREYER: But what he has --

MS. ROBIN-VERGEER: -- to bring --

JUSTICE BREYER: But the argument that I think people are worried about, against you, is, you have a case -- it's actually a wonderful example. Your client thinks that, in the affidavit that the sheriffs gave supporting the warrant, they didn't tell the truth, because they said that whoever was looking into it, you know, said there was a private driveway and that there were tire tracks, and there were no tire tracks, and it wasn't a private driveway. The other side says, "Yes, it was a long road, but sort of like a driveway, and the edge of the -- of the driveway was broken down, and that's what the sheriff's deputies were referring to." I found it a dispute on both sides.

MS. ROBIN-VERGEER: Well, you know --

JUSTICE BREYER: Now, if, in fact, he's being disciplined for that, the other side is telling you he has a lot of remedies, he has a variety of remedies. Go to the bar associations. Many States have laws, the statutes that protect people under these situations. And why suddenly go to a constitutional court to get the same relief which will short circuit all the other remedies? And if you do, there are going to be thousands of cases less good than yours, and they'll all run to -- to the constitutional court. All right. So, now, what's your reply?

MS. ROBIN-VERGEER: There is no baseline level of protection that is available by statute or civil service protections. If the Court recognizes that the speech involved here, exposing Government misconduct and so on, is important for first amendment purposes, as it has previously recognized, then it's -- then it needs to be a baseline level of first amendment protection. And then if whistle-blower statutes are passed that protect it beyond the baseline level, that's fine. I'm not maligning whistle-blower statutes. But there is no such level of protection that is guaranteed. For someone in his position, if the first amendment does not protect his speech, it's just not protected.

And I want to get back to -- I started to say why it's so important that the speech be protected. It's not just that the public needs to have a Government of public servants, but the Government needs to know how it's operating. How can Government function efficiently and effectively if it does not possess the information it needs to make responsible choices? When an employment decision is actually made because the employee has made a bad judgment and he reached an unwarranted conclusion in his memo, or the manner in which he conveyed it was terribly indiscrete, he publicized n front of the whole sheriff's department, and embarrassed them, when that's an issue, then the employment can respond, and the courts will make quick -- short shrift of those cases, as they do now.

JUSTICE ALITO: When --

CHIEF JUSTICE ROBERTS: Well, that --

JUSTICE ALITO: It --

CHIEF JUSTICE ROBERTS: -- was my point earlier. They can't make short shrift of those cases, because they're not going to be thrown out at the pleading stage. They're going to have to progress at least to summary judgment, probably in every case in which an employee is terminated, because now one of his defenses against termination is, "You're violating my first amendment rights."

MS. ROBIN-VERGEER: But, I mean, the Court needs to appreciate that for the universe of public employee free-speech cases, they're mostly decided at summary judgment; they aren't decided on the pleadings. That's already the case. And all that adding a job- duty element to it is, adds complexity and requires more factual development. It -- there's a number of issues here. First of all, what counts as part of an employee's job? Does the speech have to be required by the job, or merely related to the job? How do you judge if the speech meets the test? Do you go by the job description? Common practice? What if the employee's speech is not required by the job, but some independent ethical duty compelled him to come forward --

JUSTICE ALITO: If Pickering --

MS. ROBIN-VERGEER: -- as is the case here? And, also, what if the employee --

JUSTICE SCALIA: Cases involving those questions would have to go to the courts, I assume. But they'd be a small percentage of all the cases that would go to the courts if we adopt your position. I agree, there will still be some cases left that'll have to go to the courts to sort out these questions that you mentioned. But that's going to be a small percentage of the totality.

MS. ROBIN-VERGEER: Well, it's already a small percentage of the totality, because cases of this type, which involve speech by a public employee while they're doing their job, however that is formulated, are already a small subset of the universe of public employee --

JUSTICE SCALIA: Perhaps --

MS. ROBIN-VERGEER: -- cases.

JUSTICE SCALIA: -- because it's been unclear, until this Court has spoken to the subject, and especially in light of the dicta in our prior cases, which says that he has to be speaking publicly. The reason for the -- for the -- for the paucity of cases can be, simply, that the law was not clear, and most people thought the way -- the way your opponent in this case thinks.

MS. ROBIN-VERGEER: That's incorrect. I mean, most of the Circuits have addressed this question, and virtually all of them are -- have sided with the Ninth Circuit and has -- have refused to draw a bright-line rule when speech has come up as part of the job.

And the -- and as -- Justice Scalia, you seem to be referring to the "as a citizen" phrase the Court has used in its opinions. And I want to address that. No decision by this Court has ever turned on the "as a citizen" phrase, and it's always been used in conjunction with "matter of public concern." The most that can be said is the phrase characterizes the facts of the cases in which the Court used it. The Court hasn't addressed whether speech that's part of the job --

JUSTICE SCALIA: Yes, but the Court didn't say this guy had blue eyes.

MS. ROBIN-VERGEER: Speech --

JUSTICE SCALIA: It said he was speaking as a -- that seemed to the Court to be important to its decision.

MS. ROBIN-VERGEER: Speech -- and I don't mean to suggest it has no meaning, but "speech as a citizen" means speech that one can readily imagine a concerned citizen engaging in. You can imagine a concerned citizen coming forward to report race discrimination --

CHIEF JUSTICE ROBERTS: But that's not --

MS. ROBIN-VERGEER: -- in a school.

CHIEF JUSTICE ROBERTS: -- the context in which this law developed. It developed, originally -- if you were a public employee, you did not have free- speech rights as a citizen. As Justice Holmes said, you know, you might have the right to speak, but you don't have the right to be a policeman. So, the "as a citizen" part didn't come out of happenstance.

MS. ROBIN-VERGEER: Right.

CHIEF JUSTICE ROBERTS: It was recognizing that when you are speaking "as a citizen," juxtaposition to "as an employee," then you do have first amendment rights.

MS. ROBIN-VERGEER: But if you look at the way it was used in Pickering, which, of course, is a different case -- but, in Pickering, the Court was emphasizing that public employees, like all citizens, have an interest in speaking on a matter of public concern. The Court, in Connick, suggested that if the prosecutor there had spoken to bring to light actual or potential wrongdoing or breach of public trust, her speech would have presumptively been protected. If she had done that, she'd be speaking in the same capacity that Ceballos spoke here. One can readily imagine a concerned citizen stepping forward to expose Government misconduct. And it can be difficult to sort out in which capacity an employee is speaking. And sometimes an employee can speak in more than one capacity at once.

JUSTICE ALITO: If Pickering balancing is done, is there anything special about the situation where the employee's speech is part of the employee's job duties? Is the test applied differently in that situation?

MS. ROBIN-VERGEER: It does, because if the employer makes a judgment -- as I said before, if the employer makes a judgment that the employee has carried his job duties poorly, incompetently, insubordinately, and so on, that interest is -- it's either dispositive of the balance, or it's nearly so. And it -- so, from that standpoint, the Court could put a gloss on the Pickering balance that explains or emphasizes that the employer's interests are controlling how the jobs are performed, prevails.

But to get back, for a moment, to the --

JUSTICE ALITO: No, I'm not sure I understood that answer. So, in this situation, if the employer said that Mr. Ceballos was performing his job poorly, that would be enough to tip the balance in the employer's favor --

MS. ROBIN-VERGEER: If that was --

JUSTICE ALITO: -- under Pickering here?

MS. ROBIN-VERGEER: If that were really the case. In a case like this, it would be clearly pretextual, because not only -- not only was that not the basis that was actually offered, but the employer sided with him initially and released the defendant and said he had a legitimate basis for speaking, and called a meeting with the sheriff's department, and took all these steps to show that they actually sided with him. And only when the sheriff's department accused him of -- as acting like a public defender and said, "We're going to get sued if you don't back us up," then the office changed its position and went against Ceballos. So, in a case like this, it would clearly be pretextual. In another case, however, it would not -- presumably there are cases where it would not be pretextual.

JUSTICE ALITO: So, basically, the test -- the Pickering balancing is the same in this situation as it is in, let's say, the Givhan situation.

MS. ROBIN-VERGEER: Well, this case is almost identical to Givhan. The only -- the only thing is that the Court, in Givhan, didn't expressly opine on what capacity in which she was speaking. But it clear that --

JUSTICE SOUTER: No, but I --

MS. ROBIN-VERGEER: -- a teacher speaking --

JUSTICE SOUTER: May I --

MS. ROBIN-VERGEER: -- in both capacities --

JUSTICE SOUTER: May I interrupt you? I thought you said that, in this case, as distinct from Givhan, there would be cognizable employer interests in incompetence, the truth of what was said, the capacity to do the job without roiling the waters unduly, and so on. And that, I take it, is not necessarily so in a Givhan situation. Or is it?

MS. ROBIN-VERGEER: In --

JUSTICE SOUTER: Maybe the employer has the same interest in each. I --

MS. ROBIN-VERGEER: I think --

JUSTICE SOUTER: -- I have --

MS. ROBIN-VERGEER: -- the employer had the same interest in both cases. The question in Givhan was the fact that it was an internal report to the employer: Did that matter? Did that reduce its protection? And the Court said no. So, the only thing that it would take to make Givhan exactly like this is to put it in the employee manual or make her an ombudsman so it's -- so there's not even room for argument that it was part --

JUSTICE SOUTER: No, but in --

MS. ROBIN-VERGEER: -- of her job.

JUSTICE SOUTER: -- in Givhan, if the employee's assigned duties were all done competently, but she had just gone off the deep end on racial balance or something, the employer would not have had - - if -- so long as it was the -- a private communication like that, I don't know that the employer would have had an interest in saying, "Well, you're incompetent on the subject of racial balance, and therefore I -- you know, I'm going to demote you or fire you." But in the case in which the employee is talking on the subject within the job description, then the employer has got -- I thought you were saying he's got a direct interest in competence, truth, and so on.

MS. ROBIN-VERGEER: Yes, that's --

JUSTICE SOUTER: Okay.

MS. ROBIN-VERGEER: -- that's correct. That's right.

Let me turn, just for a second, to -- getting back to the complexity here, and the linedrawing that has to be done. The Petitioner's own hypotheticals underscore the arbitrariness and unworkability of their approach. In -- if you look in the reply brief, at page 13, note 11, they cite, as an example, a county emergency-room doctor who -- and then they put "is not part of their normal duties," to sort of build it into the hypothetical -- would have a right, a first amendment right, to come forward and talk about inefficiencies in a county emergency room. Whereas, the State health inspector, who finds health code violations in nursing homes do not. The first amendment value in those situations are the same. And, if anything, it's greater for the county emergency -- for the -- for the -- I've said this backwards -- the county emergency-room doctor who's talking about how the -- how the county hospital is operating. There's no difference there. And it's a completely arbitrary linedrawing.

Suppose Ceballos had gone outside the chain of command, suppose he had reported to Garcetti that there was police misconduct. It's not clear where that position would -- where their position would lead them. Now it's not part of his normal job duty to go talk to the DA. He's bypassed the chain of command. But it seems that they would say that, "Well, because it was not part of his normal job duty, it -- then it would be protected." And, if so, what message is that sending public employees about whether they should follow their employer's own rules about how you communicate in the workplace and what the chain of command is? It doesn't make any sense to force public employees to go public, as that does more to increase disharmony and disruption in the workplace than having an employee like Ceballos, who followed every rule and every order and instruction regarding how to handle the case and how to communicate within the workplace.

Connick said that the first amendment's primary aim is the full protection of speech upon issues of public concern, as well as the practical realities involved in the administration of a Government office. The proposed rule is inconsistent with that primary aim. It doesn't do anyone any good to have U.S. attorneys and DAs blind-sided by coverups in their office because their employees were afraid to come forward and tell their supervisors the bad news.

JUSTICE ALITO: Well, for that reason, they're -- for that reason, they're not likely to -- in most instances, they would not be hostile to receiving that kind of information, if it was provided to them.

MS. ROBIN-VERGEER: May I answer?

CHIEF JUSTICE ROBERTS: Sure.

MS. ROBIN-VERGEER: Unfortunately, there's too much evidence, there's too much water under the bridge, that shows that public employees who deliver bad news, and are the unwelcome messenger, do face retaliation in their workplaces. And here, Ceballos told his workplace, his supervisors, that police misconduct had occurred, and that was an unwelcome message, and he was retaliated against for that reason.

CHIEF JUSTICE ROBERTS: Thank you, Ms. Robin- Vergeer.

Ms. Lee, you have 3 minutes remaining.

REBUTTAL ARGUMENT OF CINDY S. LEE

ON BEHALF OF PETITIONERS

MS. LEE: Thank you, Your Honor.

I think that's an important point, Justice Alito. I mean, in this case, it's exactly what happened. The supervisors took Mr. Ceballos's assessment seriously. And the difference was, after they further thought about it, they didn't think -- they didn't agree with the proper course of action for the district attorney's office, especially since there was a motion pending, "Let's let the courts decide that." So, if -- where -- I think Plaintiff's suggesting that, but for protecting speech that's required by the duties of employment, employees really would not have much of a right or a remedy if it turns out that the employer believed that maybe they weren't performing their jobs correctly, or, in our case, if the supervisor had considered the speech and said, "You know what? You made a bad judgment call, and we don't think it's entitled to a promotion," that shouldn't give the Plaintiff a constitutional right to challenge that decision. If that -- if the -- if Mr. Ceballos was, in fact, doing his job, that was required of his job, and he was doing it competently, his remedy is not the first amendment. His remedy is not even -- he doesn't even need a whistle-blower statute for that. He could go through civil service, he could go through a formal grievance procedure, and though -- although State statutes on whistle-blowers do vary, there is no State statute, in my understanding, that covers broadly than what the Ninth Circuit does here --

JUSTICE SCALIA: Ms. Lee --

MS. LEE: -- which is --

JUSTICE SCALIA: -- what do you respond to the argument that this has been the law in a number of Circuits and the sky has not fallen?

MS. LEE: Well, the reason that job-required speech may not be -- may not be filed, or basis for first amendment retaliation, or the reason why we may not have seen that, may simply be because public employees understandably do not believe they're exercising their first amendment rights when they are simply performing their duties of employment, when they're speaking pursuant to their job duties or writing reports or memorandums pursuant to their job duties. Just because there may not be the significant increase of first amendment litigation in the public employment context for purely job-required speech does not mean that this Court should not consider this issue.

And I disagree with the representation that the facts in this case are identical to Givhan. This Court commented in that decision that Givhan was citizen speech. And I don't necessarily think that -- and it -- what -- that -- where our proposal -- our approach would add further complexity to first amendment litigation in an employment context. It's certainly not a difficult decision -- analysis in this case.

CHIEF JUSTICE ROBERTS: Thank you --

MS. LEE: Thank you.

CHIEF JUSTICE ROBERTS: -- Ms. Lee.

The case is submitted.

[Whereupon, at 2:00 p.m., the case in the above-entitled matter was submitted.]

Print this transcript Transcript: 

Argument of Speaker

Mr. Speaker: Justice Kennedy, who has sworn in as a Federal Judge 30 years ago today, has the opinion in 04-473, Garcetti versus Ceballos.

Argument of Justice Kennedy

Mr. Kennedy: In this case, we consider that the question raised, whether or not a Deputy District Attorney has a First Amendment right to send a memo to his supervisors that the supervisors disagree with.

For some years now, respondent, Richard Ceballos, has been a Deputy District Attorney for the Los Angeles County District Attorney’s Office.

The present dispute arises from actions taken by Cabellos and his supervisors relating to a criminal prosecution that the office was handling.

Cabellos at the time was a Calendar Deputy, which meant that he had certain supervisory duties in the District Attorney’s Office.

A defense attorney contacted Ceballos about a pending case.

The defense attorney said there were inaccuracies in an affidavit that the Sheriff’s Office had used to obtain a critical search warrant.

After examining the affidavit and visiting the location it described, Ceballos agreed that the affidavit set forth in his view serious misrepresentations.

He relayed those findings to a supervisor and followed up by submitting a memo, recommending that the case, the criminal case, not go forward.

Despite Ceballos’ recommendation, his supervisors ultimately decided to proceed with the prosecution.

A state trial court later heard objections to the affidavit and warrant, and the trial court in the criminal prosecution ruled in the prosecution’s favor.

Cabellos claims that in the aftermath of these events, he was subjected to a series of retaliatory employment actions, and these included, according to his allegations, reassignment and the denial of a promotion.

He sued in the United States District Court for the Central District of California, asserting, to the extent relevant in this case, a claim under 42 U.S.C. Section 1983.

He alleged that by retaliating against him for his memo, his superiors in the District Attorney’s Office had violated his free-speech rights under the First Amendment, which is made applicable to the states, of course, by the Fourteenth Amendment.

The petitioners responded that no retaliatory actions were taken against Ceballos and that in any event his memo was not protected speech.

Now, the District Court granted petitioner’s motion for summary of judgment, agreeing that the Constitution does not protect Ceballos from retaliation based on the memo; the Court of Appeals for the 9th Circuit reversed; and we granted certiorari.

We now reverse the judgment of the Court of Appeals.

Cabellos conveyed his concerns about the search warrant in a memo to his supervisors.

In that he 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.

The memo concerned the subject matter of Cabellos’ employment, and this, too, is nondispositive.

The controlling factor in Cabellos’ case is that his expressions were made pursuant to his duties as a Calendar Deputy.

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.

Cabellos wrote his disposition memo because that is part of what he as a Calendar Deputy was employed to do.

It is immaterial whether he experienced some personal gratification from writing the memo; the significant point is that restricting speech that owes its existence to a public employee’s professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen.

Cabellos did not act as a citizen when he went about conducting his daily professional activities, such as supervising attorneys, investigating charges and preparing filings.

In the same way, he did not speak as a citizen writing the memo that addressed the proper disposition of a pending criminal case.

The fact that Cabellos’ duty sometimes require him to speak or write does not mean that his supervisors were prohibited from evaluating his performance.

When an employee speaks as a citizen addressing a matter of public concern, the First Amendment requires a delicate balancing of the competing interests surrounding the speech and its consequences.

When, however, the employee is simply performing his or her job duties, there is no warrant for a similar degree of scrutiny.

Cabellos’ proposed contrarily rule adopted by the Court of Appeals would commit state and federal courts to a new permanent and intrusive role, mandating judicial oversight of communications between and among Government employees and their superiors in the course of official business, and in our view that would be a dramatic alteration of rules both of federalism and separation of powers.

This displacement of managerial discretion by judicial supervision finds no support in the precedents.

Exposing governmental inefficiency and misconduct is a matter of considerable significance.

As this Court noted in Connick v. Myers, public 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 enactment, such as whistleblower-protection laws and labor codes, available to those who seek to expose wrongdoing.

Cases involving governmental attorneys in addition implicate safeguards in the form of, for example, Professional Rules of Conduct and Constitutional obligations apart from the First Amendment.

We reject, however, the notion that the First Amendment protects from discipline the expressions made by employees pursuant to their professional duties.

The judgment of the Court of Appeals is reversed, and the case is remanded for proceedings consistent with this opinion.

Justice Stevens has filed a dissenting opinion; Justice Souter has filed a dissenting opinion, in which Justices Stevens and Ginsburg join; and Justice Breyer has filed a dissenting opinion.