Hamilton Legal

Sarah Sirota

In 2000, Richard Ceballos, an employee of the Los Angeles District Attorney’s office, found inaccuracies in a search warrant affidavit. When he informed his superiors, the District Attorney’s office refused to dismiss the case and the defense subpoenaed him to testify on its behalf. Ceballos was subsequently punished with a reassignment of his job, a location transfer and a refusal of promotion. He brought his case before the U.S. District Court for the Central District of California, claiming that the District Attorney’s office violated his first amendment rights to free speech.

The trial, known as Garcetti v. Ceballos, eventually went to the Supreme Court, which ultimately decided: “When public employees make statements pursuant to their official duties, they are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” On September 4, 2013, a federal appeals court made a decision that challenged the controversial Garcetti v. Ceballos case.

The issue began in 2010, when professor David Demurs of the Edward R. Murrow College of Communications at Washington State University distributed a pamphlet advising how to improve the school. This pamphlet induced the school to rate him poorly in reviews, which deprived him of raises.

In what is seen as a victory for professors at academic institutions, the court asserted, “We hold that Garcetti does not apply to teaching and writing on academic matters by teachers employed by the state. Rather, such teaching and writing by publicly employed teachers is governed by Pickering v. Board of Education…” In Pickering v. Board of Education (1968), the court held that “… a teacher’s exercise of his right to speak on issues of public importance may not furnish the basis for dismissal from public employment.” In other words, since Professor Demurs’ pamphlet discussed a matter of public concern, his writing is covered by the first amendment.

While the Demurs case is a step in the right direction, more must be done to ensure professors and public employees can voice their opinions. Although professors can now freely criticize or suggest ideas to their institutions if the matter is one of public concern, some may be reluctant to do so because they are fearful their statements do not fall under what is defined as “public concern.”

The Court attempts to explain what “public concern” by referring to Connick v. Myers. In Connick v. Myers, an assistant district attorney who was being transferred to a different section of the criminal court sent out a questionnaire to members of the office, requesting opinions about “office transfer policy, office morale, the need for a grievance committee, the level of confidence in supervisors, and whether employees felt pressured to work in political campaigns.”

The Court found that the “questions reflect one employee’s dissatisfaction with a transfer and an attempt to turn that displeasure into a cause c?el??bre.” On the other hand, the question regarding the political campaigns addressed “a matter of interest to the community.” Professors still may feel a bit hazy on what “public concern” is after reading this case. Although the assistant district attorney distributed the questionnaire following her transfer, couldn’t the questions have been asked out of concern for all future and past employees who had been subject to a similar transfer as hers? Wouldn’t this scenario then be a matter of public concern? The ambiguity of this case may compel professors to avoid voicing their opinions so that they are not seen as personal, which was the situation in Connick v. Myers.

Even if the assistant district attorney circulated the questionnaire strictly out of concern for her own private matter, why should the law prevent her from doing so? If her transfer came unexpectedly and for no legitimate reason, she should have the right to defend her position. The law, by only allowing the first amendment to cover the statements of public employees if they relate to issues of public concern, appears flawed. Still, under the current standards, academic institutions must ensure their employees fully understand what they are allowed and not allowed to say under the law. Perhaps they should set up committees to keep professors informed, so that they are not hesitant to speak freely about matters that actually could be beneficial to the institution. It is of utmost importance that citizens do not feel their first amendment rights are being obstructed.

Contact  Sara Sirota at [email protected].