WASHINGTON -- The Supreme Court took up the case of a Los Angeles County prosecutor yesterday to decide whether the nation's 21 million public employees have a First Amendment right to speak out about problems that arise on the job.
Most of the justices said they were not willing to create such a right, arguing it could turn every workplace dispute into a federal court battle.
"You are advocating a sweeping rule," Justice Anthony M. Kennedy told a lawyer for prosecutor Richard Ceballos. "The First Amendment isn't about policing the workplace."
In the past, the court has said that teachers and other public employees have a right as citizens to speak in public on a "matter of public concern." Under this ruling, the employees cannot be fired or punished by employers who are unhappy with what they said. However, the justices have also said that government workers who speak out on internal workplace disputes are not protected by the First Amendment.
The case of Garcetti v. Ceballos falls somewhere in between.
Five years ago, after the news of a Los Angeles police scandal, Ceballos was told that a sheriff's deputy might have exaggerated evidence to obtain a search warrant in a drug case.
Ceballos, a deputy district attorney, investigated the case and wrote a memo accusing the officer of lying. A supervisor asked him to tone down the memo, but his second version also accused the officer of "clearly misleading" the magistrate.
Supervisors pressed ahead with the drug case nonetheless, and a judge upheld the search warrant despite the evidence turned up by Ceballos, which was disputed. After he was passed over for a promotion and transferred to another office, Ceballos sued L.A. County and then-District Attorney Gil Garcetti, alleging his First Amendment right to free speech was violated when he was punished for acting as whistle blower.
In 2002, a federal judge threw out his lawsuit, saying on-the-job memos are not protected by the First Amendment. Last year, the 9th U.S. Circuit Court of Appeals revived his suit, saying that whistle-blowers who disclose police misconduct should be protected.
The suit has not gone to trial, and the Supreme Court took it up to clarify the legal rights of public employees.
During yesterday's arguments, lawyers for L.A. County and the Bush administration urged the court to throw out the lawsuit and to rule that on-the-job speech is not protected by the Constitution.
Cindy S. Lee, a lawyer representing the county, described the memos written by Ceballos as examples of "job-required speech." "Our view is that job-required speech should not be protected by the First Amendment," she said.
What about a public university professor who is fired for giving a controversial lecture, asked Chief Justice John G. Roberts Jr.
Lee responded that the lectures were part of the professor's job.
During oral argument, Bonnie Robin-Vergeer, a Public Citizen lawyer, represented Ceballos and said public employees should be protected by the Constitution for "expressions on a matter of public importance."
Kennedy took issue with that approach. "Any comment about problems in a government office is a matter of public concern," he said.
David G. Savage writes for the Los Angeles Times.