Respondent argues that the memos he had created as a district attorney are protected under the First Amendment from forced disclosure.
Public employees do not surrender all their First Amendment rights by reason of their employment. Rather, the First Amendment protects a public employee’s right, in certain circumstances, to speak as a citizen addressing matters of public concern.
Respondent Richard Ceballos has been employed as a deputy district attorney for the Los Angeles County District Attorney’s Office. A defense attorney contacted Ceballos about a pending criminal case and said that there were inaccuracies in an affidavit used to obtain a critical research warrant. After examining, Ceballos determined the affidavit contained serious misrepresentations. A meeting was held to discuss the affidavit. Attendees including Ceballos became heated with one sharply criticizing Ceballos for his handling of the case. Ceballos claims that in the aftermath of these events he was subjected to a serious a retaliatory employment actions.
Does the First Amendment protect a government employee from discipline based on speech made pursuant to the employee’s official duties?
No, when public employees make statement pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline. Restricting speech that owes its existence to a public employee’s professional responsibilites 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.
There may be circumstances with special demand for constitutional protection of speech at issue, where governmental justifications may be limited, and where administrable standards seem readily available. First, the speech at issue is professional speech. Such speech is subject to independent regulation by canons of the profession, which provide an obligation to speak in certain instances. Second, the Constitution itself imposes speech obligations upon the government’s professional employee. A prosecutor has a constitutional obligation to learn of and to communicate with the defense. The Constitution mandates special protection of employee speech in such circumstances.
Ceballos did not act as a citizen when he went about conducting his daily professional activities, such as supervising attorneys, investigating charges, and preparing files. In the same way he did not speak as a citizen by writing a memo that addressed the proper disposition of a pending criminal case. When he went to work and performed the tasks he was paid to perform, Ceballos acted as a government employee. The fact that his duties required him to speak or write does not mean his supervisors were prohibited from evaluating his performance. Employees who make public statements outside the course of performing their official duties retain some possibility of First Amendment protection because that is the kind of activity engaged in by citizens who do not work for the government. The same goes for writing a letter to a local newspaper, or discussing politics with a coworker. When a public employee speaks pursuant to employment responsibilities, however, there is no relevant analogue to speech by citizens who are not government employees.