Nahmod Law

Justice Souter’s Penultimate Government Speech Case: Garcetti v. Ceballos

In Garcetti v. Ceballos, 547 U.S. 410 (2006), an exceptionally important public employee free speech case discussed at greater length in a prior post, the Court held that a deputy district attorney’s First Amendment rights were not violated when he was allegedly retaliated against by his supervisors for writing a memo to them complaining of problems in the prosecution of a criminal case. The Court declared that public employee speech engaged in pursuant to that employee’s official duties was not protected from employer discipline by the First Amendment.

Writing for the Court, Justice Kennedy indicated that there was a government speech element present whenever public employees spoke pursuant to their official duties:

The significant point is that the memo was written pursuant to Ceballos’ official duties. 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.

547 U.S. at 421-22.

Here, as in Johanns v. Livestock Marketing Association, discussed in a prior post, the Court was again willing to say that the government’s message was whatever it said it was. In this case, the “policy” that the government was promoting determined the official duties of the employees it hired.

Justice Souter’s Dissent

In a vigorous dissent in which he attacked every aspect of the Court’s decision, Justice Souter criticized the Court’s reliance on the government speech rationale:

The key to understanding the difference between this case and Rust lies in the terms of the respective employees’ jobs and, in particular, the extent to which those terms require espousal of a substantive position prescribed by the government in advance. Some public employees are hired to ‘promote a particular policy’ by broadcasting a particular message set by the government, but not everyone working for the government, after all, is hired to speak from a government manifesto.”

547 U.S. at 437.

For the deputy district attorney’s memo to be government speech, Justice Souter argued that it would have had to set out a specific and substantive government message. Rust “is no authority for the notion that government may exercise plenary control over every comment made by a public employee in doing his job.” Justice Souter also expressed concern about academic freedom and the unintended effect that Garcetti could have on it. (On this topic, see S. Nahmod, Academic Freedom and the Post-Garcetti Blues, 7 First Amendment L. Rev. 54 (2008)).

In Garcetti, Justice Souter saw the category of government speech colonizing more and more First Amendment jurisprudence: “The fallacy of the majority’s reliance on Rosenberger‘s understanding of the Rust doctrine … portends a bloated notion of controllable government speech going well beyond the circumstances of this case.” His fear was that the Court in Garcetti had allowed the government speech doctrine and its consequent First Amendment immunity to extend to whatever the government said was its speech, without any requirement imposed on government to announce in advance what that speech was.

Next Post on Government Speech: Justice Souter’s Final Government Speech Case (City of Pleasant Grove v. Summum)