The court has held that the threshold question in such cases is whether the employee spoke as a private citizen and on a matter of public concern. If so, First Amendment protection is possible. But not mandatory, because the second question is whether restrictions on employees' speech are justified by the government's need, which any employer has, for substantial control over employees' words and actions.
Last Tuesday, Justice Anthony Kennedy, writing for the court and joined by Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel Alito, noted that the court has held that government ``cannot condition public employment on a basis that infringes the employee's constitutionally protected interest in freedom of expression.'' But the Ceballos case was not about conditioning employment; it was about whether government employees are constitutionally exempt from discipline because of speech made in the conduct of their official duties. (The federal government and most states already have statutes protecting whistleblowers.)
The 9th Circuit sided with Ceballos, citing the fact that the subject of his memo was a matter of ``public concern.'' But, Kennedy noted, the 9th Circuit did not consider whether Ceballos' speech was made in his ``capacity as a citizen.'' And: ``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.''
By ignoring the question of whether an employee was or was not speaking ``as a citizen,'' the 9th Circuit's approach would, Kennedy wrote, produce a huge ``displacement of managerial discretion by judicial supervision.'' It 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,'' a flood of ``judicial intervention in the conduct of governmental operations to a degree inconsistent with sound principles of federalism and the separation of powers.''
Ceballos' case was originally argued after Justice Sandra Day O'Connor announced her retirement but before she was replaced by Justice Alito. It was then reargued, which suggests that without Alito the court was split 4-4. If so, the addition of Alito enabled the court to prevent the 9th Circuit's approach from pulling the nation's courts even more deeply than they already are into supervising American life.
What were the Roberts and Alito confirmation battles about? That.