(The Return of) Ignatz, by Sam Heldman

Monday, February 28, 2005

but seriously folks
On a more serious note, the Supreme Court announced today that it will decide a case that could end up being very important -- good or bad -- regarding the First Amendment rights of public employees. As Lyle Denniston explains at SCOTUSblog, the case involves a deputy D.A. who alleges that he was fired "for protesting in an internal memorandum that a deputy sheriff had lied in an affidavit to support a search warrant." The D.A. -- Gil Garcetti of L.A. -- apparently wants to argue to the effect that the First Amendment doesn't protect you, even if you are speaking about matters of such major public importance, if your speech takes place in the context of your job duties. I haven't seen his petition, but that seems to be the gist of it. I cannot bring myself to believe that the Supreme Court would say something that crazy in this area of law.

[A few minutes later:]

Having researched a bit, it really does seem that this is Garcetti's contention: that the speech, even though admittedly vitally important to the public, is not constitutionally protected because it took place pursuant to the employee's job duties. Here is why that is crazy. The Supreme Court has told us, as recently as just a few months ago, that it is vitally important that public employees be able to speak about about matters of governmental policy and functions, because they are so particularly knowledgeable about those issues and because those issues are so important. E.g., San Diego v. Roe. This, in fact, is what the Supreme Court said in San Diego v. Roe along the way towards limiting First Amendment protections when public employees speak about other topics. So now, if the Supreme Court were to hold, "yes but that speech is not protected when it is done pursuant to the employee's job duties," then every employee -- if he or she wanted to remedy governmental malfeasance and not get fired for it -- would have to run to the newspapers rather than speaking about it through internal channels. (If you went through channels, the employer would just fire you and then say you had no First Amendment claim because going through channels was part of your job duties.). But of course if the assistant D.A. had run to the newspaper with his whistle-blowing, rather than reporting it through appropriate channels, the D.A. would have fired him for having violated his job duty of reporting such things internally.

Do public employers really want more employees to run directly to the newspapers when they know of impropriety? Does Gil Garcetti really want to have his name attached to the argument that it's constitutional to fire an assistant for disclosing police perjury? Why has this case been taken to the Supreme Court? Why did the Court agree to hear it? These questions and more will be answered several months from now.

posted by sam 12:34 PM 4 comments


Garcetti -- he's one of those legendary publicity hound attorney types, am I right? I think he should go back to photographing iron.

By Blogger Chris, at 8:49 PM  

Sam, you have a higher opinion of the Supreme Court's logic than I do.

I have not seen Garcetti's cert papers, but I will bet that he cites a bunch of 11th Circuit cases on his side. The problem arose when the Supremes defined the rights of public employees vs. ordinary citizens in terms of "issues of public concern." The 11th has decided that (for instance), if you are paid to write accident reports for the police department, it is not an issue of public concern when you write a report that says the mayor was getting a blow job and therefore ran the red light. Therefore, you can be fired without violating the 1st Amendment.

I can't remember the name of the case, but do a Westlaw search on "accident report" and "First Amendment" -- leave out the blow job because I just made that part up.

By Blogger Edward, at 11:10 PM  

You're right about the 11th Cir., I believe. Having represented some public employers in that Circuit (mostly several years ago), my perception is that there was a time when a public employer in that Circuit had an incredibly broad arsenal of potentially successful arguments in sec. 1983 cases, ranging all the way from something like "he's not protected b/c he didn't go to the newspaper" to something like "he's not protected b/c he went to the newspaper."

I believe that the Supreme Court will do better, because in each case the Supreme Court has to look at the big picture and think of how its decision will affect a broader range of cases. In a Circuit, by contrast, judges can -- not should, but can -- sometimes think of each case as an island, so you can get a bunch of cases that don't make any sense when juxtaposed.

That's my hope, anyway. I have been disappointed before.

By Blogger sam, at 6:36 AM  

Here's the real question, on further reflection: will the Supreme Court think about this case in a mindset that is guided by the First Amendment, or in a mindset that is guided by bits and pieces of language from the Court's previous cases?

If the Court thinks that the most important thing in the world is piecing together quotes from previous opinions that didn't really address the question presented here, but sound like they might have something to do with it when taken out of context -- then the Assistant D.A. may lose.

But if the Court takes the Constitution as its starting point, the case is easy. "OK, was this Assistant D.A. fired for something he said? Yes, at least as we must view the facts at this juncture. So, there is a First Amendment interest here -- particularly since the subject matter of the speech is so vitally important." Then the next question is, is there some legitimate reason why a public employer OUGHT to be able to fire an employee for saying what this guy said, a reason with enough strength and legitimacy to override the First Amendment protection for speech? Obviously not."

Now, I do admit that sometimes the Court decides cases based on piecing together quotes from itself rather than based on thinking about the governing statutory or constitutional text. So they could go wrong here.

By Blogger sam, at 7:33 AM  

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