High Court Weighs Scope of First Amendment Rights

The Supreme Court hears arguments in a case that focuses on whether the First Amendment guarantees free speech during the course of work on a job. A Los Angeles prosecutor says he was demoted for recommending that charges be dismissed against a defendant because a sheriff lied.

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From NPR News, this is ALL THINGS CONSIDERED. I'm Michele Norris.

The Supreme Court heard arguments today in a case dealing with whistle-blowers. At issue: whether public employees who speak out about wrongdoing have constitutional protection against retaliation. Here's NPR's legal affairs correspondent Nina Totenberg.

NINA TOTENBERG reporting:

For decades, the Supreme Court has dealt with public employees' First Amendment claims by balancing the interests of employees to speak out on matters of public concern on the one hand, and on the other hand, the interests of the public agency in maintaining a disruption-free and efficient workplace. But in the case argued before the Supreme Court today, the Los Angeles County district attorney's office, backed by the Bush administration, is asking the Supreme Court to carve out on-the-job speech as unprotected by the First Amendment.

The case involves a Los Angeles supervising prosecutor named Richard Ceballos, who, with the permission of his supervisors, investigated a claim by defense lawyers and concluded that a sheriff's deputy had lied on an affidavit used to obtain a search warrant. In a memorandum to his bosses, Ceballos recommended that the case be dismissed because of the perjurious affidavit. He says his bosses initially agreed, but that after meeting with angry sheriff's deputies, his boss backed down.

Mr. RICHARD CEBALLOS: I confronted him and basically accused my supervisor of kowtowing to the sheriff's department. He reacted quite visibly upset at that accusation.

TOTENBERG: Shortly thereafter, Ceballos was denied a promotion and transferred to a remote location. He sued, contending he'd been punished for exercising his First Amendment right. Today, lawyer Cindy Lee, representing the county, argued that if the court upholds a right to sue in a situation like this, public agencies would drown in claims from their employees.

Justice Souter: `Well, this has been the rule in the 9th Circuit since 1988, and there hasn't been a deluge. Doesn't that discount your claim?

Chief Justice Roberts: `What do you with a public university professor who's fired for the content of his lectures?'

Answer: `He's not entitled presumptively to a First Amendment protection.'

Justice Ginsburg: `Here the employee is paid to serve justice, to serve the truth.'

Answer: `His job was to serve the prosecutor's interests.'

Justice Scalia: `So that even if retaliation occurs, it is permissible?'

Answer: `Yes.'

Justice Souter then noted that the Supreme Court has required all prosecutors to disclose exculpatory information.

Souter: `What if the lawyer feels he has an ethical obligation to disclose? Does he have First Amendment protection?'

Answer: `He does not.'

If the justices were a little skeptical of the government's position, they were downright hostile to the position advocated by the lawyer for prosecutor Ceballos, Bonnie Robin-Vergeer. She contended that any employee speech on a matter of public concern is protected by the Constitution, but that in most cases, the employer's need for internal order will likely outweigh that concern.

Justice Kennedy: `The consequence of your view is that the courts would monitor speech in every public agency in the United States. The intrusive nature of your argument is sweeping.' Robin-Vergeer responded that, in fact, the cases for years have been few in number and are easily disposed of. `Moreover,' she said, `this wasn't some small thing; Ceballos was accusing a deputy sheriff of perjury.'

Chief Justice Roberts: `Why isn't this a matter of government speech? He who pays the piper calls the tune.'

Answer: `He wasn't speaking as the government but to the government as both an employee and a citizen.'

Pressed by Justice Breyer for some standards that would limit claims, the lawyer said, `At minimum, employees should be protected when they report government misconduct.'

Chief Justice Roberts: `If I get a memo from a law clerk who says Justice So-and-So's jurisprudence is wacky and I fire him because I think that's inappropriate language, he'd have a First Amendment claim?'

Answer: `That doesn't sound like a claim of government misconduct.'

Justice Scalia puckishly: `That's because nobody up here is wacky.' Nina Totenberg, NPR News, Washington.

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