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04-473 Garcetti v. Ceballos (64722)

By: dmc-admin//June 5, 2006//

04-473 Garcetti v. Ceballos (64722)

By: dmc-admin//June 5, 2006//

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Proper application of the Court’s precedents leads to the conclusion that the First Amendment does not prohibit managerial discipline based on an employee’s expressions made pursuant to official responsibilities. Because Ceballos’ memo falls into this category, his allegation of unconstitutional retaliation must fail. The dispositive factor here is not that Ceballos expressed his views inside his office, rather than publicly, see, e.g., Givhan v. Western Line Consol. School Dist., 439 U. S. 410, nor that the memo concerned the subject matter of his employment, see, e.g., Pickering, 391 U. S, at 573. Rather, the controlling factor is that Ceballos’ expressions were made pursuant to his official duties. That consideration distinguishes this case from those in which the First Amendment provides protection against discipline. Ceballos wrote his disposition memo because that is part of what he was employed to do. He did not act as a citizen by writing it. The fact that his duties sometimes required him to speak or write does not mean his supervisors were prohibited from evaluating his performance. Restricting speech that owes its existence to a public employee’s professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen. It simply reflects the exercise of employer control over what the employer itself has commissioned or created. Cf. Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819 . This result is consistent with the Court’s prior emphasis on the potential societal value of employee speech and on affording government employers sufficient discretion to manage their operations. Ceballos’ proposed contrary rule, adopted by the Ninth Circuit, 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. This displacement of managerial discretion by judicial supervision finds no support in the Court’s precedents. The doctrinal anomaly the Court of Appeals perceived in compelling public employers to tolerate certain employee speech made publicly but not speech made pursuant to an employee’s assigned duties misconceives the theoretical underpinnings of this Court’s decisions and is unfounded as a practical matter.

361 F. 3d 1168, reversed and remanded.

Local effect:

Seventh Circuit law is not consistent; the holding of the Supreme Court is consistent with Schad v. Jones, 415 F.3d 671 (7th Cir. 2005), but effectively overturns Delgado v. Jones, 282 F.3d 511 (7th Cir. 2002).

Kennedy, J.; Stevens, J., dissenting; Souter, J., dissenting; Breyer, J., dissenting.

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