WASHINGTON -- In 1892, when First Amendment jurisprudence was in its infancy, Oliver Wendell Holmes, then a justice on the Supreme Judicial Court of Massachusetts, said that a policeman ``may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.'' Holmes had a flair for aphorisms, the clarity of which sometimes gave them excessive sweep. What he meant in the case of a policeman fired for collecting money for a political committee was that government has a right, for reasons of efficiency, to discipline an officer for speech that, had it been made by a private citizen, would have had constitutional protection.
In subsequent cases, the U.S. Supreme Court, less lapidary than Holmes but more helpful, modified his doctrine that public employees have no right to contest conditions placed on the terms of their employment, even terms that restrict the exercise of constitutional rights. The court enunciated two standards by which some government workplace speech acquires protection that prevents retaliation by the speaker's superiors.
Last Tuesday, in a decision of special interest to America's 22 million public employees, the Supreme Court, with yet another 5-4 ruling, told the 9th Circuit Court of Appeals, which is always entertaining but frequently reversed (16 times last term), not to neglect half of those standards. And it told Richard Ceballos, in effect, that Holmes had half a point.
In 2000, Ceballos, a deputy district attorney in Los Angeles -- where the Ramparts Division police-corruption scandal was reverberating -- became convinced that police had made ``grossly inaccurate'' statements to obtain a search warrant. Ceballos wrote a heated memo to his supervisors, one of whom asked him to moderate it. He did, but when they proceeded with the criminal case, he informed the defendant's attorney, who subpoenaed Ceballos, whose testimony at a hearing favored the defense. As a result, Ceballos says, he was punished by demotion, reassignment and various indignities. These, he charged in a suit against his superiors, violated his First Amendment rights.
Those supervisors deny that decisions taken about Ceballos were retaliatory. Anyway, they say, Supreme Court precedents were intended to prevent myriad employee-employer disagreements from becoming constitutional disputes.
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