Government Speech and the Publicly Employed Attorney

I. INTRODUCTION In its recent cases, the U.S. Supreme Court has expanded its theoiy of government speech in such a way that constitutional free speech rights are nullified merely by categorizing the speech as "government speech."1 In Garcetti v. Ceballos, the U.S. Supreme Court nullified the free speech rights of public employees vis-a-vis their employers by applying the government speech doctrine to the speech of public employees whenever they speak putsuant to their official duties. The Court held that "when public employees make statements pursuant to their official duties . . . the Constitution does not insulate their communications from employer discipline."2 The incorporation of the government speech idea into the realm of public employee speech was a new development. Before Garcetti, the test created in Pickering v. Board of Education2, was used to determine if a public employee could be punished by an employer for her speech. The Pickering test balanced the free speech interests of die speaker and recipients with the government employer's interest in an efficient and effective work environment.4 The Garcetti rule is in stark contrast: There is no balancing of the interests - courts examine neither the importance of the speech nor the lack of disruption to the workplace. Rather, if the speech is made pursuant to the public employee's official duties, the Free Speech Clause is inapplicable and provides no protection to the employee. The rule in Garcetti and the government speech doctrine in general have been examined and criticized as problematic from a number of viewpoints.5 One aspect that has not received sufficient discussion, however, arises from the facts of Garcetti itself - namely, the special problem of using the government speech doctrine where the public employee is also an attorney.6 The facts of Garcetti itself demonstrate the problem with applying the government speech doctrine to attorney speech. Richard Ceballos was a deputy district attorney in Los Angeles County.7 Ceballos was contacted by the defense about a potential problem with a search warrant that was critical in a certain prosecution. Ceballos made his own inquiry into the matter, including talking with the affiant of the warrant, and concluded that the warrant contained serious misrepresentations.8 He wrote a memo to his superiors and recommended dismissal of the case, but his superiors refused to dismiss it.9 He then gave die memorandum to the defense (after redacting his conclusions as work product) and testified at the suppression hearing.10 As a consequence of these actions, Ceballos suffered adverse employment actions, including reassignment, transfer, and denial of a promotion.11 As explained in Justice Breyer's dissent, Ceballos believed that the speech contained in the memo "fell within the scope of his obligations under Brady v. Maryland" and progeny "to learn of, to preserve, and to communicate with the defense about exculpatory and impeachment evidence."12 Despite the fact that Ceballos's speech may have been required by the Constitution and rules of professional conduct to protect the constitutional rights of a criminal defendant (die Court did not actually examine whether or not it was so required),13 and despite his disclosure of potential government misconduct, the Supreme Court held that his speech enjoyed no First Amendment protection whatsoever.14 His employer could freely discipline him for his speech.15 In so holding, the Court incorporated the rule from its government speech cases - namely, that speech made by public employees in the scope of their official duties is treated as the government's own speech and die First Amendment is inapplicable. As Fielen Norton has summarized, in Garcetti, "die majority created a bright-line rule that treats public employees' speech delivered pursuant to their official duties as the government's own speech - that is, speech that the government has bought with a salary and thus may control free from First Amendment scrutiny. …