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Library of Congress

June 8, 2012
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Today I received notification that this blog had been selected by the Library of Congress to be cataloged and placed in their Legal Blawgs archives as representative of the nation’s historical record and in order to preserve cultural artifacts.  I consider this quite an honor!

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Losing 1st Amendment Protections

June 4, 2012
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Garcetti departed substantially from Pickering.  In this case, Ceballos, an assistant DA in Los Angeles County, employed by the DA in the OJ case, Garcetti, was contacted by a defense attorney and told of alleged serious misrepresentations in a critical search warrant.  Ceballos investigated and confirmed the defense attorney’s suspicions.  He then contacted his superiors and filed a disposition memorandum in the case recommending dismissal.  Despite his disposition recommendation, the prosecution continued.  At the criminal trial Cebellos was a witness for the defense and aired his concerns, but the Court denied the defendant’s challenge to the warrant.

Subsequent to his testimony, Cebellos was reassigned and denied a promotion, among other adverse employment actions.  He filed a §1983 case against his employer alleging violation of his 1st and 14th Amendment rights.  The US District Court granted summary judgment for the defendant, Garcetti,  finding that Ceballos had no 1st Amendment protection because he was acting as Garcetti’s employee when he wrote the memo.  The 9th Circuit Court of Appeals reversed, applying the traditional Pickering analysis and saying that Ceballos’s speech addressed a matter of public concern and his interest in the speech outweighed the defendant’s administrative interests.

The Supreme Court reversed the 9th Circuit and said “the 1st Amendment does not prohibit managerial discipline based on an employee’s expression made pursuant to official duties.  The high court reasoned that when an employee speaks as an employee the citizen protection under the 1st Amendment does not apply.  The court believed that managerial policies, discretion and efficiency were paramount.  The court found that the memorandum Ceballos wrote fell within the penumbra of his “official duty” as an assistant DA and therefore was unprotected speech.

The problem:  The Court did not define “official duty” – although it was helpful enough to suggest that a practical inquiry into official duty was paramount in each case because formal job descriptions “often bear little resemblance” to the duties an employee is expected to perform.

So, what have the subsequent courts defined “official duty” to mean?  Tune in next week…..


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