Rule #1: Don’t Mess With The Lawyers (Or Any Other Public-Sector Employees), Part 1
Some days when I look over the possible stories here, they’re filled with disputes between attorneys. It almost makes me think that my fellow editors at Suits-by-Suits and me are the only attorneys that can get along. Most of the time, at least.
Because if you are, or have ever dealt with, Attornicus Americanus, then you know two things about our profession: 1) we don’t like to be told to be quiet when we have something important to say; and 2) even worse, though, is telling us we have to say something that we don’t want to say. The two cases at issue in this two-part series feature lawyers working for the government who were in just those situations, and were fired. We look at recent interesting developments in their claims for retaliation. In passing, too, we’ll note what one of these lawyers was fired for saying, and what the other lawyer was fired for refusing to say.
All in all, these are posts about whistleblowing and retaliation claims by public employees – and not just attorneys, either. The public nature of the employment here is important because government employees keep some of their First Amendment rights to free speech when they go to work for the government. The government employer, for its part, has some limited right to limit its employees’ speech in order to get its mission accomplished. So before we turn to the two cases, a brief tour through the First Amendment rights of public employees is in order.
Our tour is not extensive and has two stops: two U.S. Supreme Court cases that lay out the main boundaries between when public employees can speak and be protected from retaliation for that speech under the First Amendment, and when they can be fired by the government agency and can’t claim that protection (you may recall, by the way, that most employees in the private sector are “at will” employees who can be fired for sharing their political views.)
The review starts with Pickering v. Board of Education. In this 1968 case, the U.S. Supreme Court held that a school teacher had a First Amendment right to criticize how his employer – the local school board – handled public referenda seeking to raise money for new schools, without being fired. The court saw that it needed “to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” As this balance applied to Pickering, the court held that since his employment as a teacher was “only tangentially and insubstantially involved in the subject matter of the public communication …we conclude that it is necessary to regard the teacher as the member of the general public.” Therefore, Pickering had a First Amendment right to complain about the referenda all he wanted.
The Supreme Court revisited this issue in 2006 in Garcetti v. Ceballos. Ceballos, a Los Angeles deputy district attorney, got a complaint from a defense lawyer about a search warrant Ceballos’s prosecution relied on. Ceballos, intrigued, looked into how the warrant had been issued. He discovered what he believed were serious misrepresentations the police had made to the court in order to get the court to issue the warrant. After he wrote a memo to his superiors about his findings, he was transferred to a different position and ultimately denied promotion. After his retaliatory discharge suit made it to the U. S. Supreme Court, that court ruled against him, holding that unlike teacher Pickering, lawyer Ceballos wasn’t acting as a simple public citizen when he wrote his memo, but rather was just performing his duty: “Precedents,” Justice Kennedy wrote, “do not support the existence of a constitutional cause of action behind every statement a public employee makes in the course of doing his or her job.”
So much for the Constitutional groundwork. Next in this series: we’ll look at the cases of Tom Corbett and Ginger Weatherspoon, two deputy attorneys-general who spoke out (Corbett) and refused to speak when ordered to (Weatherspoon).