In Garcetti v. Ceballos (2006) 547 U.S. 410, a Los Angeles County Deputy District Attorney sued his office. He alleged that he was retaliated against for engaging in protected speech. Specifically, he wrote a disposition memorandum in which he recommended dismissal of a case on the basis of governmental misconduct. The case went all the way up to the Supreme Court. In a 5-4 decision, it held that the statements at issue were made pursuant to official duties, and therefore were not made as a citizen for First Amendment purposes. The Constitution does not insulate these type of statements from discipline.
Although the prosecutor lost to his office in Garcetti, the rules set down in the case clearly protect prosecutors from statements made as private citizens. Follow the rules from this case and you cannot be retaliated against for your speech. You should read and understand the opinion.
Two inquiries guide interpretation of the constitutional protections accorded public employee speech. The first requires determining whether the employee spoke as a citizen on a matter of public concern. If the answer is no, the employee has no First Amendment cause of action based on the employer’s reaction to the speech. If the answer is yes, the possibility of a First Amendment claim arises. The question becomes whether the government employer had an adequate justification for treating the employee differently from any other member of the general public.
(Id. at p. 410-411 [internal citations omitted].) The opinion continues:
[A] citizen who works for the government is nonetheless still a citizen. The First Amendment limits a public employer’s ability to leverage the employment relationship to restrict, incidentally or intentionally, the liberties employees enjoy in their capacities as private citizens. So long as employees are speaking as citizens about matters of public concern, they must face only those speech restrictions that are necessary for their employers to operate efficiently and effectively.
(Id. at p. 410-411 [internal citations omitted].) The court considered that Ceballos expressed his views “inside his office rather than publicly,” concerning “the subject matter of his employment,” and especially that the views “concerned the subject matter of his employment.” (Id. at p. 411.) This is the “controlling factor.” (Id.) He made his speech “because that is part of what he was employed to do. He did not act as a citizen by writing it.” (Id.)
Writing a letter to the editor is specifically mentioned as a protected activity. (Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty. (1963) 391 U.S. 563.) In that case, a teacher wrote a letter to a local newspaper discussing the funding policies of his school board. (Id. at p. 566.)
Discussing politics with a co-worker is also specifically mentioned as a protected activity. (Rankin v. McPherson (1987) 483 U.S. 378.) In that case, a clerical employee was fired for a political remark made to another employee during private conversation.
Richard Ceballos Speaks Out
Richard Ceballos is still at the LA County DA’s office. He actually supported George Gascon’s election. Now, he says his new boss has gone too far. He said that he and his colleagues face and ethical question because Gascon is asking them to go against their beliefs. “I have to represent to the judge that I believe dismissing the enhancements and allegations are in the interest of justice. I don’t believe that.”