Shibboleths and Ceballos: Eroding Constitutional Rights through Pseudocommunication

ABSTRACT Recently, the Supreme Court rendered an inexplicable First Amendment decision that has far-reaching effects on the way government is held accountable to the public. In Garcetti v. Ceballos, the Court determined that a government employer can retaliate against an employee for doing his job correctly, notwithstanding the Constitution, so long as the employer targets speech that was part of the employee's official duties. Inasmuch as government employees are often responsible for reporting government misconduct and other matters of public concern, this opinion essentially leaves the public unprotected from the unbridled discretion of government supervisors. The possible motivations for this decision are several: the adoption of an increasingly popular management style that marginalizes employees; a free-market theory of governance that deregulates control of management; and, in actuality, the protection of current government supervisors from whistleblowers. All are symptomatic of the Court's increasingly authoritarian tendencies. To make the Garcetti decision palatable, the Court majority disguised the fact that its holding was unsupported by the law by employing four basic rhetorical devices throughout the opinion: the Narrative (or Storytelling) voice, the Granfalloon voice, the Symbolic voice, and the Empty voice. All four voices have universal application so that, unfortunately, the Garcetti opinion is not an outlier but an instantiation of once and future cases. "When I use a word," Humpty Dumpty said, in rather a scornful tone, "it means just what I choose it to mean-neither more nor less." "The question is," said Alice, "whether you can make words mean so many different things." "The question is," said Humpty Dumpty, "which is to be master-that's all."1 I. INTRODUCTION Humpty Dumpty refers to Lewis Carroll's poem, Jabberwocky,2 when he suggests that one who speaks is the master of his meaning. In the context of Lewis Carroll's children's story, Jabberwocky has no meaning, at least that an adult audience could discern. It is nonsensical because, although it contains recognizable words and phrases from the English language ("and," "the," "in the"), one gets tangled up in the unfamiliar lexemes, words and word stems like "brillig" and "slith."3 Humpty Dumpty, as master of the words, translates some of the unfamiliar words for Alice,4 but the song still makes no sense. If one considers a writing court as "master" of the language in its decision, each "master" usually conforms to the jargon familiar to the legal audience. The common linking words may be recognizable to the general public while the lexemes in the opinion are familiar to the members of the trade, who can translate them into fairly simple English for the client. But in recent years, the Supreme Court is becoming more like Humpty Dumpty - master of the legal profession's jargon, using familiar vocabulary and legal terms of the profession but reaching nonsensical results not otherwise conceived by precedent because the Court is changing the meanings of the words. The Court's language makes the result seem palatable and even reasonable, but upon closer scrutiny, the words are really jabberwocky. Garcetti v. Ceballos1 is one of the more obvious examples of this jabberwocky by which the Court has, once and for all, deprived government employees of First Amendment6 protections while they are fulfilling their official duties. In trying to "diagnose" the discomfort one experiences when studying the opinion, one jumps from problem to problem, the amalgamation of which is not easily distilled into a particular study of language. However, the intent and purpose of this amalgamation of language problems is perhaps best described as pseudocommunication. Pseudocommunication is less about the symbolic transmission of the message - although that is ultimately affected - than it is about obfuscating the message and its intentions. …