Garcetti v. Ceballos - Oral Argument

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.