The Supreme Court today handed down a
5-4 opinion in the case of
Ceballos v. Garcetti. In that opinion, the Supreme Court held that
public employees get no First Amendment protection whatsoever when they speak within the scope of their employment.
In Ceballos v. Garcetti, Richard Ceballos, a supervising prosecutor, wrote a memo to his superior arguing that a case should be dropped due to inaccuracies in an affidavit. Ceballos was subsequently reassigned as a trial attorney, transfered to a new courthouse, and denied a promotion. He argued that these actions were retalliation for his writing the memo, in violation of his First Amendment rights.
The Court held that Ceballos is entitled to no First Amendment protection for his speech in this case. In an opinion by Justice Kennedy, joined by Chief Justice Roberts and Justices Scalia, Thomas and Alito, the Court explained that drafting the relevant memo fell entirely within Ceballos' "job duties." "When a public employee speaks pursuant to employment responsibilities," the Court held, heightened scrutiny under the First Amendment is inappropriate.
This case is a massive departure from prior law, which held that a government employee's speech was entitled to First Amendment protection if the public's interest in the speech and the employee's interest in speaking outweighed the employer's interest in supressing the speech. Under the old rule, whistleblowers and respectful dissenting voices were encouraged because the public had an interest in ensuring that government officials did not act without hearing different opinions. Under the new rule, if you work for the government, and your boss doesn't want to hear what you say in a respectful, well-argued memo, your boss can fire you.
As a final twist, this case was originally argued in front of Justice O'Connor, but was reargued when she departed upon the confirmation of Samuel Alito. Prior to O'Connor's departure, it was widely viewed that O'Connor would have provided the fifth vote in the other direction. In other words, Justice Alito is the reason why government employees lost their First Amendment rights today.