Garcetti v. Ceballos

(Slip Opinion) OCTOBER TERM, 2005 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

GARCETTI ET AL. v. CEBALLOS

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

No. 04–473. Argued October 12, 2005—Reargued March 21, 2006—

Decided May 30, 2006

Respondent Ceballos, a supervising deputy district attorney, was asked

by defense counsel to review a case in which, counsel claimed, the af

fidavit police used to obtain a critical search warrant was inaccurate.

Concluding after the review that the affidavit made serious misrep

resentations, Ceballos relayed his findings to his supervisors, petition

ers here, and followed up with a disposition memorandum recommend

ing dismissal. Petitioners nevertheless proceeded with the

prosecution. At a hearing on a defense motion to challenge the war

rant, Ceballos recounted his observations about the affidavit, but the

trial court rejected the challenge. Claiming that petitioners then re

taliated against him for his memo in violation of the First and Four

teenth Amendments, Ceballos filed a 42 U. S. C. §1983 suit. The Dis

trict Court granted petitioners summary judgment, ruling, inter alia,

that the memo was not protected speech because Ceballos wrote it

pursuant to his employment duties. Reversing, the Ninth Circuit

held that the memo’s allegations were protected under the First

Amendment analysis in Pickering v. Board of Ed. of Township High

School Dist. 205, Will Cty., 391 U. S. 563, and Connick v. Myers, 461

U. S. 138.

Held: When public employees make statements pursuant to their offi

cial duties, they are not speaking as citizens for First Amendment

purposes, and the Constitution does not insulate their communica

tions from employer discipline. Pp. 5–14.

(a) Two inquiries guide interpretation of the constitutional protec

tions accorded public employee speech. The first requires determin

ing whether the employee spoke as a citizen on a matter of public

concern. See Pickering, supra, at 568. If the answer is no, the em

2 GARCETTI v. CEBALLOS

Syllabus

ployee has no First Amendment cause of action based on the em

ployer’s reaction to the speech. See Connick, supra, at 147. If the

answer is yes, the possibility of a First Amendment claim arises. The

question becomes whether the government employer had an ade

quate justification for treating the employee differently from any

other member of the general public. See Pickering, supra, at 568.

This consideration reflects the importance of the relationship be

tween the speaker’s expressions and employment. Without a signifi

cant degree of control over its employees’ words and actions, a gov

ernment employer would have little chance to provide public services

efficiently. Cf. Connick, supra, at 143. Thus, a government entity

has broader discretion to restrict speech when it acts in its employer

role, but the restrictions it imposes must be directed at speech that

has some potential to affect its operations. On the other hand, a citi

zen who works for the government is nonetheless still a citizen. The

First Amendment limits a public employer’s ability to leverage the

employment relationship to restrict, incidentally or intentionally, the

liberties employees enjoy in their capacities as private citizens. See

Perry v. Sindermann, 408 U. S. 593, 597. So long as employees are

speaking as citizens about matters of public concern, they must face

only those speech restrictions that are necessary for their employers

to operate efficiently and effectively. See, e.g., Connick, supra, at

147. Pp. 5–8.

(b) Proper application of the Court’s precedents leads to the conclu

sion that the First Amendment does not prohibit managerial disci

pline based on an employee’s expressions made pursuant to official

responsibilities. Because Ceballos’ memo falls into this category, his

allegation of unconstitutional retaliation must fail. The dispositive

factor here is not that Ceballos expressed his views inside his office,

rather than publicly, see, e.g., Givhan v. Western Line Consol. School

Dist., 439 U. S. 410, 414, nor that the memo concerned the subject mat

ter of his employment, see, e.g., Pickering, 391 U. S, at 573. Rather, the

controlling factor is that Ceballos’ expressions were made pursuant to

his official duties. That consideration distinguishes this case from

those in which the First Amendment provides protection against dis

cipline. Ceballos wrote his disposition memo because that is part of

what he was employed to do. He did not act as a citizen by writing it.

The fact that his duties sometimes required him to speak or write

does not mean his supervisors were prohibited from evaluating his

performance. Restricting speech that owes its existence to a public

employee’s professional responsibilities does not infringe any liberties

the employee might have enjoyed as a private citizen. It simply re

flects the exercise of employer control over what the employer itself

has commissioned or created. Cf. Rosenberger v. Rector and Visitors

Cite as: 547 U. S. ____ (2006) 3

Syllabus

of Univ. of Va., 515 U. S. 819, 833. This result is consistent with the

Court’s prior emphasis on the potential societal value of employee

speech and on affording government employers sufficient discretion to

manage their operations. Ceballos’ proposed contrary rule, adopted by

the Ninth Circuit, would commit state and federal courts to a new,

permanent, and intrusive role, mandating judicial oversight of com

munications between and among government employees and their

superiors in the course of official business. This displacement of

managerial discretion by judicial supervision finds no support in the

Court’s precedents. The doctrinal anomaly the Court of Appeals per

ceived in compelling public employers to tolerate certain employee

speech made publicly but not speech made pursuant to an employee’s

assigned duties misconceives the theoretical underpinnings of this

Court’s decisions and is unfounded as a practical matter. Pp. 8–13.

(c) Exposing governmental inefficiency and misconduct is a matter

of considerable significance, and various measures have been adopted

to protect employees and provide checks on supervisors who would or

der unlawful or otherwise inappropriate actions. These include federal

and state whistle-blower protection laws and labor codes and, for gov

ernment attorneys, rules of conduct and constitutional obligations

apart from the First Amendment. However, the Court’s precedents

do not support the existence of a constitutional cause of action behind

every statement a public employee makes in the course of doing his

or her job. Pp. 13–14.

361 F. 3d 1168, reversed and remanded.

KENNEDY, J., delivered the opinion of the Court, in which ROBERTS,

C. J., and SCALIA, THOMAS, and ALITO, JJ., joined. STEVENS, J., filed a

dissenting opinion. SOUTER, J., filed a dissenting opinion, in which

STEVENS and GINSBURG, JJ., joined. BREYER, J., filed a dissenting

opinion.

Cite as: 547 U. S. ____ (2006) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash

ington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 04–473

_________________

GIL GARCETTI, ET AL., PETITIONERS v. RICHARD

CEBALLOS

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

[May 30, 2006]

JUSTICE KENNEDY delivered the opinion of the Court.

It is well settled that “a State cannot condition public

employment on a basis that infringes the employee’s

constitutionally protected interest in freedom of expres

sion.” Connick v. Myers, 461 U. S. 138, 142 (1983). The

question presented by the instant case is whether the

First Amendment protects a government employee from

discipline based on speech made pursuant to the em

ployee’s official duties.

I

Respondent Richard Ceballos has been employed since

1989 as a deputy district attorney for the Los Angeles

County District Attorney’s Office. During the period

relevant to this case, Ceballos was a calendar deputy in

the office’s Pomona branch, and in this capacity he exer

cised certain supervisory responsibilities over other law

yers. In February 2000, a defense attorney contacted

Ceballos about a pending criminal case. The defense

attorney said there were inaccuracies in an affidavit used

to obtain a critical search warrant. The attorney informed

Ceballos that he had filed a motion to traverse, or chal

2 GARCETTI v. CEBALLOS

Opinion of the Court

lenge, the warrant, but he also wanted Ceballos to review

the case. According to Ceballos, it was not unusual for

defense attorneys to ask calendar deputies to investigate

aspects of pending cases.

After examining the affidavit and visiting the location it

described, Ceballos determined the affidavit contained

serious misrepresentations. The affidavit called a long

driveway what Ceballos thought should have been re

ferred to as a separate roadway. Ceballos also questioned

the affidavit’s statement that tire tracks led from a

stripped-down truck to the premises covered by the war

rant. His doubts arose from his conclusion that the road

way’s composition in some places made it difficult or im

possible to leave visible tire tracks.

Ceballos spoke on the telephone to the warrant affiant,

a deputy sheriff from the Los Angeles County Sheriff’s

Department, but he did not receive a satisfactory explana

tion for the perceived inaccuracies. He relayed his findings

to his supervisors, petitioners Carol Najera and Frank

Sundstedt, and followed up by preparing a disposition

memorandum. The memo explained Ceballos’ concerns and

recommended dismissal of the case. On March 2, 2000,

Ceballos submitted the memo to Sundstedt for his review.

A few days later, Ceballos presented Sundstedt with an

other memo, this one describing a second telephone con

versation between Ceballos and the warrant affiant.

Based on Ceballos’ statements, a meeting was held to dis

cuss the affidavit. Attendees included Ceballos, Sundstedt,

and Najera, as well as the warrant affiant and other em

ployees from the sheriff’s department. The meeting alleg

edly became heated, with one lieutenant sharply criticiz

ing Ceballos for his handling of the case.

Despite Ceballos’ concerns, Sundstedt decided to pro

ceed with the prosecution, pending disposition of the

defense motion to traverse. The trial court held a hearing

on the motion. Ceballos was called by the defense and

Cite as: 547 U. S. ____ (2006) 3

Opinion of the Court

recounted his observations about the affidavit, but the

trial court rejected the challenge to the warrant.

Ceballos claims that in the aftermath of these events he

was subjected to a series of retaliatory employment actions.

The actions included reassignment from his calendar dep

uty position to a trial deputy position, transfer to another

courthouse, and denial of a promotion. Ceballos initiated

an employment grievance, but the grievance was denied

based on a finding that he had not suffered any retaliation.

Unsatisfied, Ceballos sued in the United States District

Court for the Central District of California, asserting, as

relevant here, a claim under Rev. Stat. §1979, 42 U. S. C.

§1983. He alleged petitioners violated the First and Four

teenth Amendments by retaliating against him based on

his memo of March 2.

Petitioners responded that no retaliatory actions were

taken against Ceballos and that all the actions of which he

complained were explained by legitimate reasons such as

staffing needs. They further contended that, in any event,

Ceballos’ memo was not protected speech under the First

Amendment. Petitioners moved for summary judgment,

and the District Court granted their motion. Noting that

Ceballos wrote his memo pursuant to his employment

duties, the court concluded he was not entitled to First

Amendment protection for the memo’s contents. It held in

the alternative that even if Ceballos’ speech was constitu

tionally protected, petitioners had qualified immunity

because the rights Ceballos asserted were not clearly

established.

The Court of Appeals for the Ninth Circuit reversed,

holding that “Ceballos’s allegations of wrongdoing in the

memorandum constitute protected speech under the First

Amendment.” 361 F. 3d 1168, 1173 (2004). In reaching

its conclusion the court looked to the First Amendment

analysis set forth in Pickering v. Board of Ed. of Township

High School Dist. 205, Will Cty., 391 U. S. 563 (1968), and

4 GARCETTI v. CEBALLOS

Opinion of the Court

Connick, 461 U. S. 138. Connick instructs courts to begin by

considering whether the expressions in question were made

by the speaker “as a citizen upon matters of public concern.”

See id., at 146–147. The Court of Appeals determined that

Ceballos’ memo, which recited what he thought to be gov

ernmental misconduct, was “inherently a matter of public

concern.” 361 F. 3d, at 1174. The court did not, however,

consider whether the speech was made in Ceballos’ capacity

as a citizen. Rather, it relied on Circuit precedent rejecting

the idea that “a public employee’s speech is deprived of First

Amendment protection whenever those views are expressed,

to government workers or others, pursuant to an employ

ment responsibility.” Id., at 1174–1175 (citing cases includ

ing Roth v. Veteran’s Admin. of Govt. of United States, 856

F. 2d 1401 (CA9 1988)).

Having concluded that Ceballos’ memo satisfied the

public-concern requirement, the Court of Appeals pro

ceeded to balance Ceballos’ interest in his speech against

his supervisors’ interest in responding to it. See Pickering,

supra, at 568. The court struck the balance in Ceballos’

favor, noting that petitioners “failed even to suggest dis

ruption or inefficiency in the workings of the District

Attorney’s Office” as a result of the memo. See 361 F. 3d,

at 1180. The court further concluded that Ceballos’ First

Amendment rights were clearly established and that

petitioners’ actions were not objectively reasonable. See

id., at 1181–1182.

Judge O’Scannlain specially concurred. Agreeing that

the panel’s decision was compelled by Circuit precedent,

he nevertheless concluded Circuit law should be revisited

and overruled. See id., at 1185. Judge O’Scannlain em

phasized the distinction “between speech offered by a

public employee acting as an employee carrying out his or

her ordinary job duties and that spoken by an employee

acting as a citizen expressing his or her personal views on

disputed matters of public import.” Id., at 1187. In his

Cite as: 547 U. S. ____ (2006) 5

Opinion of the Court

view, “when public employees speak in the course of carry

ing out their routine, required employment obligations,

they have no personal interest in the content of that speech

that gives rise to a First Amendment right.” Id., at 1189.

We granted certiorari, 543 U. S. 1186 (2005), and we

now reverse.

II

As the Court’s decisions have noted, for many years “the

unchallenged dogma was that a public employee had no

right to object to conditions placed upon the terms of

employment—including those which restricted the exer

cise of constitutional rights.” Connick, 461 U. S., at 143.

That dogma has been qualified in important respects. See

id., at 144–145. The Court has made clear that public

employees do not surrender all their First Amendment

rights by reason of their employment. Rather, the First

Amendment protects a public employee’s right, in certain

circumstances, to speak as a citizen addressing matters of

public concern. See, e.g., Pickering, supra, at 568; Connick,

supra, at 147; Rankin v. McPherson, 483 U. S. 378, 384

(1987); United States v. Treasury Employees, 513 U. S.

454, 466 (1995).

Pickering provides a useful starting point in explaining

the Court’s doctrine. There the relevant speech was a

teacher’s letter to a local newspaper addressing issues

including the funding policies of his school board. 391

U. S., at 566. “The problem in any case,” the Court stated,

“is to arrive at a balance between the interests of the

teacher, as a citizen, in commenting upon matters of public

concern and the interest of the State, as an employer, in

promoting the efficiency of the public services it performs

through its employees.” Id., at 568. The Court found the

teacher’s speech “neither [was] shown nor can be pre

sumed to have in any way either impeded the teacher’s

proper performance of his daily duties in the classroom or

6 GARCETTI v. CEBALLOS

Opinion of the Court

to have interfered with the regular operation of the schools

generally.” Id., at 572–573 (footnote omitted). Thus, the

Court concluded that “the interest of the school admini

stration in limiting teachers’ opportunities to contribute to

public debate is not significantly greater than its interest

in limiting a similar contribution by any member of the

general public.” Id., at 573.

Pickering and the cases decided in its wake identify two

inquiries to guide interpretation of the constitutional

protections accorded to public employee speech. The first

requires determining whether the employee spoke as a

citizen on a matter of public concern. See id., at 568. If

the answer is no, the employee has no First Amendment

cause of action based on his or her employer’s reaction to

the speech. See Connick, supra, at 147. If the answer is

yes, then the possibility of a First Amendment claim

arises. The question becomes whether the relevant gov

ernment entity had an adequate justification for treating

the employee differently from any other member of the

general public. See Pickering, 391 U. S., at 568. This

consideration reflects the importance of the relationship

between the speaker’s expressions and employment. A

government entity has broader discretion to restrict

speech when it acts in its role as employer, but the restric

tions it imposes must be directed at speech that has some

potential to affect the entity’s operations.

To be sure, conducting these inquiries sometimes has

proved difficult. This is the necessary product of “the enor

mous variety of fact situations in which critical statements

by teachers and other public employees may be thought by

their superiors . . . to furnish grounds for dismissal.” Id., at

569. The Court’s overarching objectives, though, are evident.

When a citizen enters government service, the citizen by

necessity must accept certain limitations on his or her

freedom. See, e.g., Waters v. Churchill, 511 U. S. 661, 671

(1994) (plurality opinion) (“[T]he government as employer

Cite as: 547 U. S. ____ (2006) 7

Opinion of the Court

indeed has far broader powers than does the government

as sovereign”). Government employers, like private em

ployers, need a significant degree of control over their

employees’ words and actions; without it, there would be

little chance for the efficient provision of public services.

Cf. Connick, supra, at 143 (“[G]overnment offices could not

function if every employment decision became a constitu

tional matter”). Public employees, moreover, often occupy

trusted positions in society. When they speak out, they can

express views that contravene governmental policies or

impair the proper performance of governmental functions.

At the same time, the Court has recognized that a citi

zen who works for the government is nonetheless a citizen.

The First Amendment limits the ability of a public em

ployer to leverage the employment relationship to restrict,

incidentally or intentionally, the liberties employees enjoy

in their capacities as private citizens. See Perry v. Sinder

mann, 408 U. S. 593, 597 (1972). So long as employees are

speaking as citizens about matters of public concern, they

must face only those speech restrictions that are necessary

for their employers to operate efficiently and effectively.

See, e.g., Connick, supra, at 147 (“Our responsibility is to

ensure that citizens are not deprived of fundamental

rights by virtue of working for the government”).

The Court’s employee-speech jurisprudence protects, of

course, the constitutional rights of public employees. Yet

the First Amendment interests at stake extend beyond the

individual speaker. The Court has acknowledged the

importance of promoting the public’s interest in receiving

the well-informed views of government employees engag

ing in civic discussion. Pickering again provides an in

structive example. The Court characterized its holding as

rejecting the attempt of school administrators to “limi[t]

teachers’ opportunities to contribute to public debate.”

391 U. S., at 573. It also noted that teachers are “the

members of a community most likely to have informed and

8 GARCETTI v. CEBALLOS

Opinion of the Court

definite opinions” about school expenditures. Id., at 572.

The Court’s approach acknowledged the necessity for

informed, vibrant dialogue in a democratic society. It

suggested, in addition, that widespread costs may arise

when dialogue is repressed. The Court’s more recent cases

have expressed similar concerns. See, e.g., San Diego v.

Roe, 543 U. S. 77, 82 (2004) (per curiam) (“Were [public

employees] not able to speak on [the operation of their

employers], the community would be deprived of informed

opinions on important public issues. The interest at stake

is as much the public’s interest in receiving informed

opinion as it is the employee’s own right to disseminate it”

(citation omitted)); cf. Treasury Employees, 513 U. S., at

470 (“The large-scale disincentive to Government employ

ees’ expression also imposes a significant burden on the

public’s right to read and hear what the employees would

otherwise have written and said”).

The Court’s decisions, then, have sought both to pro

mote the individual and societal interests that are served

when employees speak as citizens on matters of public

concern and to respect the needs of government employers

attempting to perform their important public functions.

See, e.g., Rankin, 483 U. S., at 384 (recognizing “the dual

role of the public employer as a provider of public services

and as a government entity operating under the constraints

of the First Amendment”). Underlying our cases has been

the premise that while the First Amendment invests

public employees with certain rights, it does not empower

them to “constitutionalize the employee grievance.” Con-

nick, 461 U. S., at 154.

III

With these principles in mind we turn to the instant

case. Respondent Ceballos believed the affidavit used to

obtain a search warrant contained serious misrepresenta

tions. He conveyed his opinion and recommendation in a

memo to his supervisor. That Ceballos expressed his

Cite as: 547 U. S. ____ (2006) 9

Opinion of the Court

views inside his office, rather than publicly, is not disposi

tive. Employees in some cases may receive First Amend

ment protection for expressions made at work. See, e.g.,

Givhan v. Western Line Consol. School Dist., 439 U. S.

410, 414 (1979). Many citizens do much of their talking

inside their respective workplaces, and it would not serve

the goal of treating public employees like “any member of

the general public,” Pickering, 391 U. S., at 573, to hold

that all speech within the office is automatically exposed

to restriction.

The memo concerned the subject matter of Ceballos’ em

ployment, but this, too, is nondispositive. The First Amend

ment protects some expressions related to the speaker’s job.

See, e.g., ibid.; Givhan, supra, at 414. As the Court noted in

Pickering: “Teachers are, as a class, the members of a com

munity most likely to have informed and definite opinions as

to how funds allotted to the operation of the schools should

be spent. Accordingly, it is essential that they be able to

speak out freely on such questions without fear of retaliatory

dismissal.” 391 U. S., at 572. The same is true of many

other categories of public employees.

The controlling factor in Ceballos’ case is that his ex

pressions were made pursuant to his duties as a calendar

deputy. See Brief for Respondent 4 (“Ceballos does not

dispute that he prepared the memorandum ‘pursuant to

his duties as a prosecutor’ ”). That consideration—the fact

that Ceballos spoke as a prosecutor fulfilling a responsibil

ity to advise his supervisor about how best to proceed with

a pending case—distinguishes Ceballos’ case from those in

which the First Amendment provides protection against

discipline. We hold that when public employees make

statements pursuant to their official duties, the employees

are not speaking as citizens for First Amendment pur

poses, and the Constitution does not insulate their com

munications from employer discipline.

Ceballos wrote his disposition memo because that is

10 GARCETTI v. CEBALLOS

Opinion of the Court

part of what he, as a calendar deputy, was employed to do.

It is immaterial whether he experienced some personal

gratification from writing the memo; his First Amendment

rights do not depend on his job satisfaction. The signifi

cant point is that the memo was written pursuant to

Ceballos’ official duties. Restricting speech that owes its

existence to a public employee’s professional responsibili

ties does not infringe any liberties the employee might

have enjoyed as a private citizen. It simply reflects the

exercise of employer control over what the employer itself

has commissioned or created. Cf. Rosenberger v. Rector

and Visitors of Univ. of Va., 515 U. S. 819, 833 (1995)

(“[W]hen the government appropriates public funds to

promote a particular policy of its own it is entitled to say

what it wishes”). Contrast, for example, the expressions

made by the speaker in Pickering, whose letter to the

newspaper had no official significance and bore similari

ties to letters submitted by numerous citizens every day.

Ceballos did not act as a citizen when he went about

conducting his daily professional activities, such as super

vising attorneys, investigating charges, and preparing

filings. In the same way he did not speak as a citizen by

writing a memo that addressed the proper disposition of a

pending criminal case. When he went to work and per

formed the tasks he was paid to perform, Ceballos acted as

a government employee. The fact that his duties some

times required him to speak or write does not mean

his supervisors were prohibited from evaluating his

performance.

This result is consistent with our precedents’ attention

to the potential societal value of employee speech. See

supra, at 7–8. Refusing to recognize First Amendment

claims based on government employees’ work product does

not prevent them from participating in public debate. The

employees retain the prospect of constitutional protection

for their contributions to the civic discourse. This prospect

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Opinion of the Court

of protection, however, does not invest them with a right

to perform their jobs however they see fit.

Our holding likewise is supported by the emphasis of our

precedents on affording government employers sufficient

discretion to manage their operations. Employers have

heightened interests in controlling speech made by an em

ployee in his or her professional capacity. Official communi

cations have official consequences, creating a need for sub

stantive consistency and clarity. Supervisors must ensure

that their employees’ official communications are accurate,

demonstrate sound judgment, and promote the employer’s

mission. Ceballos’ memo is illustrative. It demanded the

attention of his supervisors and led to a heated meeting with

employees from the sheriff’s department. If Ceballos’ superi

ors thought his memo was inflammatory or misguided, they

had the authority to take proper corrective action.

Ceballos’ proposed contrary rule, adopted by the Court

of Appeals, would commit state and federal courts to a

new, permanent, and intrusive role, mandating judicial

oversight of communications between and among govern

ment employees and their superiors in the course of offi

cial business. This displacement of managerial discretion

by judicial supervision finds no support in our precedents.

When an employee speaks as a citizen addressing a matter

of public concern, the First Amendment requires a delicate

balancing of the competing interests surrounding the

speech and its consequences. When, however, the em

ployee is simply performing his or her job duties, there is

no warrant for a similar degree of scrutiny. To hold oth

erwise would be to demand permanent judicial interven

tion in the conduct of governmental operations to a degree

inconsistent with sound principles of federalism and the

separation of powers.

The Court of Appeals based its holding in part on what

it perceived as a doctrinal anomaly. The court suggested

it would be inconsistent to compel public employers to

12 GARCETTI v. CEBALLOS

Opinion of the Court

tolerate certain employee speech made publicly but not

speech made pursuant to an employee’s assigned duties.

See 361 F. 3d, at 1176. This objection misconceives the

theoretical underpinnings of our decisions. Employees who

make public statements outside the course of performing

their official duties retain some possibility of First Amend

ment protection because that is the kind of activity en

gaged in by citizens who do not work for the government.

The same goes for writing a letter to a local newspaper,

see Pickering, 391 U. S. 563, or discussing politics with a

co-worker, see Rankin, 483 U. S. 378. When a public

employee speaks pursuant to employment responsibilities,

however, there is no relevant analogue to speech by citi

zens who are not government employees.

The Court of Appeals’ concern also is unfounded as a

practical matter. The perceived anomaly, it should be

noted, is limited in scope: It relates only to the expressions

an employee makes pursuant to his or her official respon

sibilities, not to statements or complaints (such as those at

issue in cases like Pickering and Connick) that are made

outside the duties of employment. If, moreover, a govern

ment employer is troubled by the perceived anomaly, it

has the means at hand to avoid it. A public employer that

wishes to encourage its employees to voice concerns pri

vately retains the option of instituting internal policies

and procedures that are receptive to employee criticism.

Giving employees an internal forum for their speech will

discourage them from concluding that the safest avenue of

expression is to state their views in public.

Proper application of our precedents thus leads to the

conclusion that the First Amendment does not prohibit

managerial discipline based on an employee’s expressions

made pursuant to official responsibilities. Because Cebal

los’ memo falls into this category, his allegation of uncon

stitutional retaliation must fail.

Two final points warrant mentioning. First, as indi

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cated above, the parties in this case do not dispute that

Ceballos wrote his disposition memo pursuant to his em

ployment duties. We thus have no occasion to articulate a

comprehensive framework for defining the scope of an

employee’s duties in cases where there is room for serious

debate. We reject, however, the suggestion that employers

can restrict employees’ rights by creating excessively

broad job descriptions. See post, at 4, n. 2 (SOUTER, J.,

dissenting). The proper inquiry is a practical one. Formal

job descriptions often bear little resemblance to the duties

an employee actually is expected to perform, and the

listing of a given task in an employee’s written job descrip

tion is neither necessary nor sufficient to demonstrate that

conducting the task is within the scope of the employee’s

professional duties for First Amendment purposes.

Second, JUSTICE SOUTER suggests today’s decision may

have important ramifications for academic freedom, at

least as a constitutional value. See post, at 12–13. There

is some argument that expression related to academic

scholarship or classroom instruction implicates additional

constitutional interests that are not fully accounted for by

this Court’s customary employee-speech jurisprudence.

We need not, and for that reason do not, decide whether

the analysis we conduct today would apply in the same

manner to a case involving speech related to scholarship

or teaching.

IV

Exposing governmental inefficiency and misconduct is a

matter of considerable significance. As the Court noted in

Connick, public employers should, “as a matter of good

judgment,” be “receptive to constructive criticism offered

by their employees.” 461 U. S., at 149. The dictates of

sound judgment are reinforced by the powerful network of

legislative enactments—such as whistle-blower protection

laws and labor codes—available to those who seek to

14 GARCETTI v. CEBALLOS

Opinion of the Court

expose wrongdoing. See, e.g., 5 U. S. C. §2302(b)(8); Cal.

Govt. Code Ann. §8547.8 (West 2005); Cal. Lab. Code Ann.

§1102.5 (West Supp. 2006). Cases involving government

attorneys implicate additional safeguards in the form of,

for example, rules of conduct and constitutional obliga

tions apart from the First Amendment. See, e.g., Cal. Rule

Prof. Conduct 5–110 (2005) (“A member in government

service shall not institute or cause to be instituted crimi

nal charges when the member knows or should know that

the charges are not supported by probable cause”); Brady

v. Maryland, 373 U. S. 83 (1963). These imperatives, as

well as obligations arising from any other applicable consti

tutional provisions and mandates of the criminal and civil

laws, protect employees and provide checks on supervisors

who would order unlawful or otherwise inappropriate

actions.

We reject, however, the notion that the First Amend

ment shields from discipline the expressions employees

make pursuant to their professional duties. Our prece

dents do not support the existence of a constitutional

cause of action behind every statement a public employee

makes in the course of doing his or her job.

The judgment of the Court of Appeals is reversed, and

the case is remanded for proceedings consistent with this

opinion.

It is so ordered.

Cite as: 547 U. S. ____ (2006) 1

STEVENS, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 04–473

_________________

GIL GARCETTI, ET AL., PETITIONERS v. RICHARD

CEBALLOS

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

[May 30, 2006]

JUSTICE STEVENS, dissenting.

The proper answer to the question “whether the First

Amendment protects a government employee from disci

pline based on speech made pursuant to the employee’s

official duties,” ante, at 1, is “Sometimes,” not “Never.” Of

course a supervisor may take corrective action when such

speech is “inflammatory or misguided,” ante, at 11. But

what if it is just unwelcome speech because it reveals facts

that the supervisor would rather not have anyone else

discover?*

——————

* See, e.g., Branton v. Dallas, 272 F. 3d 730 (CA5 2001) (police inter

nal investigator demoted by police chief after bringing the false testi

mony of a fellow officer to the attention of a city official); Miller v.

Jones, 444 F. 3d 929, 936 (CA7 2006) (police officer demoted after

opposing the police chief’s attempt to “us[e] his official position to coerce

a financially independent organization into a potentially ruinous

merger”); Delgado v. Jones, 282 F. 3d 511 (CA7 2002) (police officer

sanctioned for reporting criminal activity that implicated a local politi

cal figure who was a good friend of the police chief); Herts v. Smith, 345

F. 3d 581 (CA8 2003) (school district official’s contract was not renewed

after she gave frank testimony about the district’s desegregation

efforts); Kincade v. Blue Springs, 64 F. 3d 389 (CA8 1995) (engineer

fired after reporting to his supervisors that contractors were failing to

2 GARCETTI v. CEBALLOS

STEVENS, J., dissenting

As JUSTICE SOUTER explains, public employees are still

citizens while they are in the office. The notion that there

is a categorical difference between speaking as a citizen

and speaking in the course of one’s employment is quite

wrong. Over a quarter of a century has passed since then-

Justice Rehnquist, writing for a unanimous Court, re

jected “the conclusion that a public employee forfeits his

protection against governmental abridgment of freedom of

speech if he decides to express his views privately rather

than publicly.” Givhan v. Western Line Consol. School

Dist., 439 U. S. 410, 414 (1979). We had no difficulty

recognizing that the First Amendment applied when

Bessie Givhan, an English teacher, raised concerns about

the school’s racist employment practices to the principal.

See id., at 413–416. Our silence as to whether or not her

speech was made pursuant to her job duties demonstrates

that the point was immaterial. That is equally true today,

for it is senseless to let constitutional protection for ex

actly the same words hinge on whether they fall within a

job description. Moreover, it seems perverse to fashion a

new rule that provides employees with an incentive to

voice their concerns publicly before talking frankly to their

superiors.

While today’s novel conclusion to the contrary may not

be “inflammatory,” for the reasons stated in JUSTICE

SOUTER’s dissenting opinion it is surely “misguided.”

——————

complete dam-related projects and that the resulting dam might be

structurally unstable); Fox v. District of Columbia, 83 F. 3d 1491, 1494

(CADC 1996) (D. C. Lottery Board security officer fired after informing

the police about a theft made possible by “rather drastic managerial

ineptitude”).

Cite as: 547 U. S. ____ (2006) 1

SOUTER, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 04–473

_________________

GIL GARCETTI, ET AL., PETITIONERS v. RICHARD

CEBALLOS

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

[May 30, 2006]

JUSTICE SOUTER, with whom JUSTICE STEVENS and

JUSTICE GINSBURG join, dissenting.

The Court holds that “when public employees make

statements pursuant to their official duties, the employees

are not speaking as citizens for First Amendment pur

poses, and the Constitution does not insulate their com

munications from employer discipline.” Ante, at 9. I

respectfully dissent. I agree with the majority that a

government employer has substantial interests in effectuat

ing its chosen policy and objectives, and in demanding

competence, honesty, and judgment from employees who

speak for it in doing their work. But I would hold that

private and public interests in addressing official wrongdo

ing and threats to health and safety can outweigh the gov

ernment’s stake in the efficient implementation of policy,

and when they do public employees who speak on these

matters in the course of their duties should be eligible to

claim First Amendment protection.

I

Open speech by a private citizen on a matter of public

importance lies at the heart of expression subject to pro

tection by the First Amendment. See, e.g., Schenck v. Pro-

Choice Network of Western N. Y., 519 U. S. 357, 377 (1997).

At the other extreme, a statement by a government em

2 GARCETTI v. CEBALLOS

SOUTER, J., dissenting

ployee complaining about nothing beyond treatment under

personnel rules raises no greater claim to constitutional

protection against retaliatory response than the remarks

of a private employee. See Connick v. Myers, 461 U. S. 138,

147 (1983). In between these points lies a public em

ployee’s speech unwelcome to the government but on a

significant public issue. Such an employee speaking as a

citizen, that is, with a citizen’s interest, is protected from

reprisal unless the statements are too damaging to the

government’s capacity to conduct public business to be

justified by any individual or public benefit thought to

flow from the statements. Pickering v. Board of Ed. of

Township High School Dist. 205, Will Cty., 391 U. S. 563,

568 (1968). Entitlement to protection is thus not absolute.

This significant, albeit qualified, protection of public

employees who irritate the government is understood to

flow from the First Amendment, in part, because a gov

ernment paycheck does nothing to eliminate the value to

an individual of speaking on public matters, and there is

no good reason for categorically discounting a speaker’s

interest in commenting on a matter of public concern just

because the government employs him. Still, the First

Amendment safeguard rests on something more, being the

value to the public of receiving the opinions and informa

tion that a public employee may disclose. “Government

employees are often in the best position to know what ails

the agencies for which they work.” Waters v. Churchill,

511 U. S. 661, 674 (1994).

The reason that protection of employee speech is quali

fied is that it can distract co-workers and supervisors from

their tasks at hand and thwart the implementation of

legitimate policy, the risks of which grow greater the

closer the employee’s speech gets to commenting on his

own workplace and responsibilities. It is one thing for an

office clerk to say there is waste in government and quite

another to charge that his own department pays full-time

Cite as: 547 U. S. ____ (2006) 3

SOUTER, J., dissenting

salaries to part-time workers. Even so, we have regarded

eligibility for protection by Pickering balancing as the

proper approach when an employee speaks critically about

the administration of his own government employer. In

Givhan v. Western Line Consol. School Dist., 439 U. S. 410

(1979), we followed Pickering when a teacher was fired for

complaining to a superior about the racial composition of

the school’s administrative, cafeteria, and library staffs,

439 U. S., at 413–414, and the same point was clear in

Madison Joint School Dist. No. 8 v. Wisconsin Employment

Relations Comm’n, 429 U. S. 167 (1976). That case was

decided, in part, with reference to the Pickering framework,

and the Court there held that a schoolteacher speaking out

on behalf of himself and others at a public school board

meeting could not be penalized for criticizing pending collec

tive-bargaining negotiations affecting professional employ

ment. Madison noted that the teacher “addressed the school

board not merely as one of its employees but also as a con

cerned citizen, seeking to express his views on an important

decision of his government.” 429 U. S., at 174–175. In each

case, the Court realized that a public employee can wear a

citizen’s hat when speaking on subjects closely tied to the

employee’s own job, and Givhan stands for the same conclu

sion even when the speech is not addressed to the public at

large. Cf. Pegram v. Herdrich, 530 U. S. 211, 225 (2000)

(recognizing that, factually, a trustee under the Employee

Retirement Income Security Act of 1974 can both act as

ERISA fiduciary and act on behalf of the employer).

The difference between a case like Givhan and this one

is that the subject of Ceballos’s speech fell within the

scope of his job responsibilities, whereas choosing person

nel was not what the teacher was hired to do. The effect of

the majority’s constitutional line between these two cases,

then, is that a Givhan schoolteacher is protected when

complaining to the principal about hiring policy, but a

school personnel officer would not be if he protested that

4 GARCETTI v. CEBALLOS

SOUTER, J., dissenting

the principal disapproved of hiring minority job appli

cants. This is an odd place to draw a distinction,1 and

while necessary judicial line-drawing sometimes looks

arbitrary, any distinction obliges a court to justify its

choice. Here, there is no adequate justification for the

majority’s line categorically denying Pickering protection

to any speech uttered “pursuant to . . . official duties,”

ante, at 9.

As all agree, the qualified speech protection embodied in

Pickering balancing resolves the tension between individ

ual and public interests in the speech, on the one hand,

and the government’s interest in operating efficiently

without distraction or embarrassment by talkative or

headline-grabbing employees. The need for a balance

hardly disappears when an employee speaks on matters

his job requires him to address; rather, it seems obvious

that the individual and public value of such speech is no

less, and may well be greater, when the employee speaks

pursuant to his duties in addressing a subject he knows

intimately for the very reason that it falls within his

duties.2

——————

1 It seems stranger still in light of the majority’s concession of some

First Amendment protection when a public employee repeats state

ments made pursuant to his duties but in a separate, public forum or in

a letter to a newspaper. Ante, at 12.

2 I do not say the value of speech “pursuant to . . . duties” will always

be greater, because I am pessimistic enough to expect that one response

to the Court’s holding will be moves by government employers to

expand stated job descriptions to include more official duties and so

exclude even some currently protectable speech from First Amendment

purview. Now that the government can freely penalize the school

personnel officer for criticizing the principal because speech on the

subject falls within the personnel officer’s job responsibilities, the

government may well try to limit the English teacher’s options by the

simple expedient of defining teachers’ job responsibilities expansively,

investing them with a general obligation to ensure sound administra

tion of the school. Hence today’s rule presents the regrettable prospect

that protection under Pickering v. Board of Ed. of Township High School

Cite as: 547 U. S. ____ (2006) 5

SOUTER, J., dissenting

As for the importance of such speech to the individual, it

stands to reason that a citizen may well place a very high

value on a right to speak on the public issues he decides to

make the subject of his work day after day. Would anyone

doubt that a school principal evaluating the performance

of teachers for promotion or pay adjustment retains a

citizen’s interest in addressing the quality of teaching in

the schools? (Still, the majority indicates he could be fired

without First Amendment recourse for fair but unfavor

able comment when the teacher under review is the super

intendent’s daughter.) Would anyone deny that a prosecu

tor like Richard Ceballos may claim the interest of any

citizen in speaking out against a rogue law enforcement

officer, simply because his job requires him to express a

judgment about the officer’s performance? (But the major

ity says the First Amendment gives Ceballos no protec

tion, even if his judgment in this case was sound and

appropriately expressed.)

Indeed, the very idea of categorically separating the

citizen’s interest from the employee’s interest ignores the

fact that the ranks of public service include those who

share the poet’s “object . . . to unite [m]y avocation and my

vocation;”3 these citizen servants are the ones whose civic

interest rises highest when they speak pursuant to their

duties, and these are exactly the ones government em

ployers most want to attract.4 There is no question that

——————

Dist. 205, Will Cty., 391 U. S. 563 (1968), may be diminished by expan

sive statements of employment duties.

The majority’s response, that the enquiry to determine duties is a

“practical one,” ante, at 13, does not alleviate this concern. It sets out a

standard that will not discourage government employers from setting

duties expansively, but will engender litigation to decide which stated

duties were actual and which were merely formal.

3 R. Frost, Two Tramps in Mud Time, Collected Poems, Prose, &

Plays 251, 252 (R. Poirier & M. Richardson eds. 1995).

4 Not to put too fine a point on it, the Human Resources Division of

the Los Angeles County District Attorney’s Office, Ceballos’s employer,

6 GARCETTI v. CEBALLOS

SOUTER, J., dissenting

public employees speaking on matters they are obliged to

address would generally place a high value on a right to

speak, as any responsible citizen would.

Nor is there any reason to raise the counterintuitive

question whether the public interest in hearing informed

employees evaporates when they speak as required on

some subject at the core of their jobs. Two Terms ago, we

recalled the public value that the Pickering Court per

ceived in the speech of public employees as a class: “Un

derlying the decision in Pickering is the recognition that

public employees are often the members of the community

who are likely to have informed opinions as to the opera

tions of their public employers, operations which are of

——————

is telling anyone who will listen that its work “provides the personal

satisfaction and fulfillment that comes with knowing you are contribut

ing essential services to the citizens of Los Angeles County.” Career

Opportunities, http://da.co.la.ca.us/hr/default.htm (all Internet materi

als as visited May 25, 2006, and available in Clerk of Court’s case file).

The United States expresses the same interest in identifying the

individual ideals of a citizen with its employees’ obligations to the

Government. See Brief as Amicus Curiae 25 (stating that public

employees are motivated to perform their duties “to serve the public”).

Right now, for example, the U. S. Food and Drug Administration is

appealing to physicians, scientists, and statisticians to work in the

Center for Drug Evaluation and Research, with the message that they

“can give back to [their] community, state, and country by making a

difference in the lives of Americans everywhere.” Career Opportunities at

CDER: You Can Make a Difference, http://www.fda.gov/cder/career/default.htm.

Indeed, the Congress of the United States, by concurrent resolution,

has previously expressly endorsed respect for a citizen’s obligations as

the prime responsibility of Government employees: “Any person in

Government Service should: . . . [p]ut loyalty to the highest moral

principles and to country above loyalty to persons, party, or Govern

ment department,” and shall “[e]xpose corruption wherever discovered,”

Code of Ethics for Government Service, H. Con. Res. 175, 85th Cong.,

2d Sess., 72 Stat. B12. Display of this Code in Government buildings

was once required by law, 94 Stat. 855; this obligation has been re

pealed, Office of Government Ethics Authorization Act of 1996, Pub. L.

104–179, §4, 110 Stat. 1566.

Cite as: 547 U. S. ____ (2006) 7

SOUTER, J., dissenting

substantial concern to the public. Were they not able to

speak on these matters, the community would be deprived

of informed opinions on important public issues. The

interest at stake is as much the public’s interest in receiv

ing informed opinion as it is the employee’s own right to

disseminate it.” San Diego v. Roe, 543 U. S. 77, 82 (2004)

(per curiam) (citation omitted). This is not a whit less true

when an employee’s job duties require him to speak about

such things: when, for example, a public auditor speaks on

his discovery of embezzlement of public funds, when a

building inspector makes an obligatory report of an at

tempt to bribe him, or when a law enforcement officer

expressly balks at a superior’s order to violate constitu

tional rights he is sworn to protect. (The majority, how

ever, places all these speakers beyond the reach of First

Amendment protection against retaliation.)

Nothing, then, accountable on the individual and public

side of the Pickering balance changes when an employee

speaks “pursuant” to public duties. On the side of the

government employer, however, something is different,

and to this extent, I agree with the majority of the Court.

The majority is rightly concerned that the employee who

speaks out on matters subject to comment in doing his

own work has the greater leverage to create office uproars

and fracture the government’s authority to set policy to be

carried out coherently through the ranks. “Official com

munications have official consequences, creating a need

for substantive consistency and clarity. Supervisors must

ensure that their employees’ official communications are

accurate, demonstrate sound judgment, and promote the

employer’s mission,” ante, at 11. Up to a point, then, the

majority makes good points: government needs civility in

the workplace, consistency in policy, and honesty and

competence in public service.

But why do the majority’s concerns, which we all share,

require categorical exclusion of First Amendment protec

8 GARCETTI v. CEBALLOS

SOUTER, J., dissenting

tion against any official retaliation for things said on the

job? Is it not possible to respect the unchallenged individ

ual and public interests in the speech through a Pickering

balance without drawing the strange line I mentioned

before, supra, at 3–4? This is, to be sure, a matter of

judgment, but the judgment has to account for the un

doubted value of speech to those, and by those, whose

specific public job responsibilities bring them face to face

with wrongdoing and incompetence in government, who

refuse to avert their eyes and shut their mouths. And it

has to account for the need actually to disrupt government

if its officials are corrupt or dangerously incompetent. See

n. 4, supra. It is thus no adequate justification for the

suppression of potentially valuable information simply to

recognize that the government has a huge interest in

managing its employees and preventing the occasionally

irresponsible one from turning his job into a bully pulpit.

Even there, the lesson of Pickering (and the object of most

constitutional adjudication) is still to the point: when

constitutionally significant interests clash, resist the

demand for winner-take-all; try to make adjustments that

serve all of the values at stake.

Two reasons in particular make me think an adjustment

using the basic Pickering balancing scheme is perfectly

feasible here. First, the extent of the government’s legiti

mate authority over subjects of speech required by a public

job can be recognized in advance by setting in effect a

minimum heft for comments with any claim to outweigh

it. Thus, the risks to the government are great enough for

us to hold from the outset that an employee commenting

on subjects in the course of duties should not prevail on

balance unless he speaks on a matter of unusual impor

tance and satisfies high standards of responsibility in the

way he does it. The examples I have already given indi

cate the eligible subject matter, and it is fair to say that

only comment on official dishonesty, deliberately unconsti

Cite as: 547 U. S. ____ (2006) 9

SOUTER, J., dissenting

tutional action, other serious wrongdoing, or threats to

health and safety can weigh out in an employee’s favor. If

promulgation of this standard should fail to discourage

meritless actions premised on 42 U. S. C. §1983 (or Bivens

v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971))

before they get filed, the standard itself would sift them

out at the summary-judgment stage.5

My second reason for adapting Pickering to the circum

stances at hand is the experience in Circuits that have

recognized claims like Ceballos’s here. First Amendment

protection less circumscribed than what I would recognize

has been available in the Ninth Circuit for over 17 years,

and neither there nor in other Circuits that accept claims

like this one has there been a debilitating flood of litigation.

There has indeed been some: as represented by Ceballos’s

lawyer at oral argument, each year over the last five years,

approximately 70 cases in the different Courts of Appeals

and approximately 100 in the various District Courts. Tr. of

Oral Arg. 58–59. But even these figures reflect a readiness

to litigate that might well have been cooled by my view

about the importance required before Pickering treatment is

in order.

For that matter, the majority’s position comes with no

guarantee against factbound litigation over whether a

public employee’s statements were made “pursuant to . . .

official duties,” ante, at 9. In fact, the majority invites

such litigation by describing the enquiry as a “practical

one,” ante, at 13, apparently based on the totality of em

ployment circumstances.6 See n. 2, supra. Are prosecu

——————

5 As I also said, a public employer is entitled (and obliged) to impose

high standards of honesty, accuracy, and judgment on employees who

speak in doing their work. These criteria are not, however, likely to

discourage meritless litigation or provide a handle for summary judg

ment. The employee who has spoken out, for example, is unlikely to

blame himself for prior bad judgment before he sues for retaliation.

6 According to the majority’s logic, the litigation it encourages would

10 GARCETTI v. CEBALLOS

SOUTER, J., dissenting

tors’ discretionary statements about cases addressed to

the press on the courthouse steps made “pursuant to their

official duties”? Are government nuclear scientists’ com

plaints to their supervisors about a colleague’s improper

handling of radioactive materials made “pursuant” to

duties?

II

The majority seeks support in two lines of argument

extraneous to Pickering doctrine. The one turns on a

fallacious reading of cases on government speech, the

other on a mistaken assessment of protection available

under whistle-blower statutes.

A

The majority accepts the fallacy propounded by the

county petitioners and the Federal Government as amicus

that any statement made within the scope of public em

ployment is (or should be treated as) the government’s

own speech, see ante, at 10, and should thus be differenti

ated as a matter of law from the personal statements the

First Amendment protects, see Broadrick v. Oklahoma,

413 U. S. 601, 610 (1973). The majority invokes the inter

pretation set out in Rosenberger v. Rector and Visitors of

Univ. of Va., 515 U. S. 819 (1995), of Rust v. Sullivan, 500

U. S. 173 (1991), which held there was no infringement of

the speech rights of Title X funds recipients and their staffs

when the Government forbade any on-the-job counseling in

favor of abortion as a method of family planning, id., at 192–

200. We have read Rust to mean that “when the govern

ment appropriates public funds to promote a particular

policy of its own it is entitled to say what it wishes.” Rosen

berger, supra, at 833.

The key to understanding the difference between this

——————

have the unfortunate result of “demand[ing] permanent judicial inter

vention in the conduct of governmental operations,” ante, at 11.

Cite as: 547 U. S. ____ (2006) 11

SOUTER, J., dissenting

case and Rust lies in the terms of the respective employ

ees’ jobs and, in particular, the extent to which those

terms require espousal of a substantive position pre

scribed by the government in advance. Some public em

ployees are hired to “promote a particular policy” by

broadcasting a particular message set by the government,

but not everyone working for the government, after all, is

hired to speak from a government manifesto. See Legal

Services Corporation v. Velazquez, 531 U. S. 533, 542

(2001). There is no claim or indication that Ceballos was

hired to perform such a speaking assignment. He was

paid to enforce the law by constitutional action: to exercise

the county government’s prosecutorial power by acting

honestly, competently, and constitutionally. The only

sense in which his position apparently required him to

hew to a substantive message was at the relatively ab

stract point of favoring respect for law and its evenhanded

enforcement, subjects that are not at the level of contro

versy in this case and were not in Rust. Unlike the doc

tors in Rust, Ceballos was not paid to advance one specific

policy among those legitimately available, defined by a

specific message or limited by a particular message for

bidden. The county government’s interest in his speech

cannot therefore be equated with the terms of a specific,

prescribed, or forbidden substantive position comparable

to the Federal Government’s interest in Rust, and Rust is

no authority for the notion that government may exercise

plenary control over every comment made by a public

employee in doing his job.

It is not, of course, that the district attorney lacked

interest of a high order in what Ceballos might say. If his

speech undercut effective, lawful prosecution, there would

have been every reason to rein him in or fire him; a state

ment that created needless tension among law enforce

ment agencies would be a fair subject of concern, and the

same would be true of inaccurate statements or false ones

12 GARCETTI v. CEBALLOS

SOUTER, J., dissenting

made in the course of doing his work. But these interests

on the government’s part are entirely distinct from any

claim that Ceballos’s speech was government speech with

a preset or proscribed content as exemplified in Rust. Nor

did the county petitioners here even make such a claim in

their answer to Ceballos’s complaint, see n. 13, infra.

The fallacy of the majority’s reliance on Rosenberger’s

understanding of Rust doctrine, moreover, portends a

bloated notion of controllable government speech going

well beyond the circumstances of this case. Consider the

breadth of the new formulation:

“Restricting speech that owes its existence to a public

employee’s professional responsibilities does not in

fringe any liberties the employee might have enjoyed

as a private citizen. It simply reflects the exercise of

employer control over what the employer itself has

commissioned or created.” Ante, at 10.

This ostensible domain beyond the pale of the First

Amendment is spacious enough to include even the teach

ing of a public university professor, and I have to hope

that today’s majority does not mean to imperil First

Amendment protection of academic freedom in public

colleges and universities, whose teachers necessarily

speak and write “pursuant to official duties.” See Grutter

v. Bollinger, 539 U. S. 306, 329 (2003) (“We have long recog

nized that, given the important purpose of public education

and the expansive freedoms of speech and thought associ

ated with the university environment, universities occupy a

special niche in our constitutional tradition”); Keyishian v.

Board of Regents of Univ. of State of N. Y., 385 U. S. 589,

603 (1967) (“Our Nation is deeply committed to safeguard

ing academic freedom, which is of transcendent value to all

of us and not merely to the teachers concerned. That free

dom is therefore a special concern of the First Amendment,

which does not tolerate laws that cast a pall of orthodoxy

Cite as: 547 U. S. ____ (2006) 13

SOUTER, J., dissenting

over the classroom. ‘The vigilant protection of constitutional

freedoms is nowhere more vital than in the community of

American schools’” (quoting Shelton v. Tucker, 364 U. S.

479, 487 (1960))); Sweezy v. New Hampshire, 354 U. S. 234,

250 (1957) (a governmental enquiry into the contents of a

scholar’s lectures at a state university “unquestionably was

an invasion of [his] liberties in the areas of academic free

dom and political expression—areas in which government

should be extremely reticent to tread”).

B

The majority’s second argument for its disputed limita

tion of Pickering doctrine is that the First Amendment has

little or no work to do here owing to an assertedly compre

hensive complement of state and national statutes protect

ing government whistle-blowers from vindictive bosses.

See ante, at 13–14. But even if I close my eyes to the tenet

that “ ‘[t]he applicability of a provision of the Constitution

has never depended on the vagaries of state or federal law,’ ”

Board of Comm’rs, Wabaunsee Cty. v. Umbehr, 518 U. S.

668, 680 (1996), the majority’s counsel to rest easy fails on

its own terms.7

To begin with, speech addressing official wrongdoing

may well fall outside protected whistle-blowing, defined in

the classic sense of exposing an official’s fault to a third

party or to the public; the teacher in Givhan, for example,

who raised the issue of unconstitutional hiring bias, would

not have qualified as that sort of whistle-blower, for she

——————

7 Even though this Court has recognized that 42 U. S. C. §1983 “does

not authorize a suit for every alleged violation of federal law,” Livadas

v. Bradshaw, 512 U. S. 107, 132 (1994), the rule is that Ҥ1983 remains a

generally and presumptively available remedy for claimed violations of

federal law,” id., at 133. Individual enforcement under §1983 is rendered

unavailable for alleged violations of federal law when the underlying

statutory provision is part of a federal statutory scheme clearly incom

patible with individual enforcement under §1983. See Rancho Palos

Verdes v. Abrams, 544 U. S. 113, 119–120 (2005).

14 GARCETTI v. CEBALLOS

SOUTER, J., dissenting

was fired after a private conversation with the school

principal. In any event, the combined variants of statu

tory whistle-blower definitions and protections add up to a

patchwork, not a showing that worries may be remitted to

legislatures for relief. See D. Westman & N. Modesitt,

Whistleblowing: Law of Retaliatory Discharge 67–75, 281–

307 (2d ed. 2004). Some state statutes protect all govern

ment workers, including the employees of municipalities

and other subdivisions;8 others stop at state employees.9

Some limit protection to employees who tell their bosses

before they speak out;10 others forbid bosses from imposing

any requirement to warn.11 As for the federal Whistle-

blower Protection Act of 1989, 5 U. S. C. §1213 et seq.,

current case law requires an employee complaining of

retaliation to show “ ‘irrefragable proof ’ ” that the person

criticized was not acting in good faith and in compliance

with the law, see Lachance v. White, 174 F. 3d 1378, 1381

(CA Fed. 1999), cert. denied, 528 U. S. 1153 (2000). And

——————

8 Del. Code Ann., Tit. 29, §5115 (2003); Fla. Stat. §112.3187 (2003);

Haw. Rev. Stat. §378–61 (1993); Ky. Rev. Stat. Ann. §61.101 (West

2005); Mass. Gen. Laws Ann., ch. 149, §185 (West 2004); Nev. Rev.

Stat. §281.611 (2003); N. H. Rev. Stat. Ann. §275–E:1 (Supp. 2005);

Ohio Rev. Code Ann. §4113.51 (Lexis 2001); Tenn. Code Ann. §50–1–

304 (2006 Cum. Supp.).

9Ala. Code §36–26A–1 et seq. (2001); Colo. Rev. Stat. §24–50.5–101 et

seq. (2004); Iowa Code Ann. §70A.28 et seq. (1999); Kan. Stat. Ann. §75–

2973 (2003 Cum. Supp.); Mo. Rev. Stat. §105.055 (2004 Cum. Supp.);

N. C. Gen. Stat. Ann. §126–84 (Lexis 2003); 2 Okla. Stat., Tit. 74, §840–

2.5 et seq. (West 2005 Supp.); Wash. Rev. Code §42.40.010 (2000); Wyo.

Stat. Ann. §9–11–102 (2003).

10 Idaho Code §6–2104(1)(a) (Lexis 2004); Me. Rev. Stat. Ann., Tit. 26,

§833(2) (1988); Mass. Gen. Laws Ann., ch. 149, §185(c)(1) (West 2004);

N. H. Rev. Stat. Ann. §275–E:2(II) (1999); N. J. Stat. Ann. §34:19–4

(West 2000); N. Y. Civ. Serv. Law Ann. §75–b(2)(b) (West 1999); Wyo.

Stat. Ann. §9–11–103(b) (2003).

11 Kan. Stat. Ann. §75–2973(d)(2) (Cum. Supp. 2003); Ky. Rev. Stat.

Ann. §61.102(1) (West 2005); Mo. Rev. Stat. §105.055(2) (2004 Cum.

Supp.); 2 Okla. Stat., Tit. 74, §840–2.5(B)(4) (West 2005 Supp.); Ore.

Rev. Stat. §659A.203(1)(c) (2003).

Cite as: 547 U. S. ____ (2006) 15

SOUTER, J., dissenting

federal employees have been held to have no protection for

disclosures made to immediate supervisors, see Willis v.

Department of Agriculture, 141 F. 3d 1139, 1143 (CA Fed.

1998); Horton v. Department of Navy, 66 F. 3d 279, 282

(CA Fed. 1995), cert. denied, 516 U. S. 1176 (1996), or for

statements of facts publicly known already, see Francisco

v. Office of Personnel Management, 295 F. 3d 1310, 1314

(CA Fed. 2002). Most significantly, federal employees

have been held to be unprotected for statements made in

connection with normal employment duties, Huffman v.

Office of Personnel Management, 263 F. 3d 1341, 1352 (CA

Fed. 2001), the very speech that the majority says will be

covered by “the powerful network of legislative enactments

. . . available to those who seek to expose wrongdoing,”

ante, at 13–14.12 My point is not to disparage particular

statutes or speak here to the merits of interpretations by

other federal courts, but merely to show the current un

derstanding of statutory protection: individuals doing the

same sorts of governmental jobs and saying the same sorts

of things addressed to civic concerns will get different

protection depending on the local, state, or federal juris

dictions that happened to employ them.

III

The Court remands because the Court of Appeals con

sidered only the disposition memorandum and because

Ceballos charges retaliation for some speech apparently

outside the ambit of utterances “pursuant to official du

ties.” When the Court of Appeals takes up this case once

again, it should consider some of the following facts that

escape emphasis in the majority opinion owing to its fo

cus.13 Ceballos says he sought his position out of a per

——————

12 Seen. 4, supra.

13 Thiscase comes to the Court on the motions of petitioners for sum

mary judgment, and as such, “[t]he evidence of [Ceballos] is to be

believed, and all justifiable inferences are to be drawn in his favor.”

16 GARCETTI v. CEBALLOS

SOUTER, J., dissenting

sonal commitment to perform civic work. After showing

his superior, petitioner Frank Sunstedt, the disposition

memorandum at issue in this case, Ceballos complied with

Sunstedt’s direction to tone down some accusatory rhetoric

out of concern that the memorandum would be unneces

sarily incendiary when shown to the Sheriff’s Department.

After meeting with members of that department, Ceballos

told his immediate supervisor, petitioner Carol Najera,

that he thought Brady v. Maryland, 373 U. S. 83 (1963),

obliged him to give the defense his internal memorandum

as exculpatory evidence. He says that Najera responded

by ordering him to write a new memorandum containing

nothing but the deputy sheriff’s statements, but that he

balked at that. Instead, he proposed to turn over the

existing memorandum with his own conclusions redacted

as work product, and this is what he did. The issue over

revealing his conclusions arose again in preparing for the

suppression hearing. Ceballos maintains that Sunstedt

ordered Najera, representing the prosecution, to give the

trial judge a full picture of the circumstances, but that

Najera told Ceballos he would suffer retaliation if he

testified that the affidavit contained intentional fabrica

tions. In any event, Ceballos’s testimony generally

stopped short of his own conclusions. After the hearing,

the trial judge denied the motion to suppress, explaining

that he found grounds independent of the challenged

material sufficient to show probable cause for the warrant.

Ceballos says that over the next six months his supervi

sors retaliated against him14 not only for his written re

——————

Anderson v. Liberty Lobby, Inc., 477 U. S. 242, 255 (1986).

14 Sunstedt demoted Ceballos to a trial deputy; his only murder case

was reassigned to a junior colleague with no experience in homicide

matters, and no new murder cases were assigned to him; then-District

Attorney Gil Garcetti, relying in part on Sunstedt’s recommendation,

denied Ceballos a promotion; finally, Sunstedt and Najera transferred

him to the Office’s El Monte Branch, requiring longer commuting.

Cite as: 547 U. S. ____ (2006) 17

SOUTER, J., dissenting

ports, see ante, at 3, but also for his spoken statements to

them and his hearing testimony in the pending criminal

case. While an internal grievance filed by Ceballos chal

lenging these actions was pending, Ceballos spoke at a

meeting of the Mexican-American Bar Association about

misconduct of the Sheriff’s Department in the criminal

case, the lack of any policy at the District Attorney’s Office

for handling allegations of police misconduct, and the

retaliatory acts he ascribed to his supervisors. Two days

later, the office dismissed Ceballos’s grievance, a result he

attributes in part to his Bar Association speech.

Ceballos’s action against petitioners under 42 U. S. C.

§1983 claims that the individuals retaliated against him

for exercising his First Amendment rights in submitting

the memorandum, discussing the matter with Najera and

Sunstedt, testifying truthfully at the hearing, and speak

ing at the bar meeting.15 As I mentioned, the Court of

——————

Before transferring Ceballos, Najera offered him a choice between

transferring and remaining at the Pomona Branch prosecuting misde

meanors instead of felonies. When Ceballos refused to choose, Najera

transferred him.

15 The county petitioners’ position on these claims is difficult to follow

or, at least, puzzling. In their motion for summary judgment, they

denied that any of their actions was responsive to Ceballos’s criticism of

the sheriff’s affidavit. E.g., App. 159–160, 170–172 (maintaining that

Ceballos was transferred to the El Monte Branch because of the de

creased workload in the Pomona Branch and because he was next in a

rotation to go there to serve as a “filing deputy”); id., at 160, 172–173

(contending that Ceballos’s murder case was reassigned to a junior

colleague to give that attorney murder trial experience before he was

transferred to the Juvenile Division of the District Attorney’s Office);

id., at 161–162, 173–174 (arguing that Ceballos was denied a promotion

by Garcetti despite Sunstedt’s stellar review of Ceballos, when Garcetti

was unaware of the matter in People v. Cuskey, the criminal case for

which Ceballos wrote the pertinent disposition memorandum). Their

reply to Ceballos’s opposition to summary judgment, however, shows

that petitioners argued for a Pickering assessment (for want of a

holding that Ceballos was categorically disentitled to any First

Amendment protection) giving great weight in their favor to workplace

18 GARCETTI v. CEBALLOS

SOUTER, J., dissenting

Appeals saw no need to address the protection afforded to

Ceballos’s statements other than the disposition memo

randum, which it thought was protected under the

Pickering test. Upon remand, it will be open to the Court

of Appeals to consider the application of Pickering to any

retaliation shown for other statements; not all of those

statements would have been made pursuant to official

duties in any obvious sense, and the claim relating to

truthful testimony in court must surely be analyzed inde

pendently to protect the integrity of the judicial process.

——————

disharmony and distrust caused by Ceballos’s actions. E.g., App. 477–

478.

Cite as: 547 U. S. ____ (2006) 1

BREYER, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 04–473

_________________

GIL GARCETTI, ET AL., PETITIONERS v. RICHARD

CEBALLOS

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

[May 30, 2006]

JUSTICE BREYER, dissenting.

This case asks whether the First Amendment protects

public employees when they engage in speech that both (1)

involves matters of public concern and (2) takes place in

the ordinary course of performing the duties of a govern

ment job. I write separately to explain why I cannot fully

accept either the Court’s or JUSTICE SOUTER’s answer to

the question presented.

I

I begin with what I believe is common ground:

(1) Because virtually all human interaction takes place

through speech, the First Amendment cannot offer all

speech the same degree of protection. Rather, judges must

apply different protective presumptions in different con

texts, scrutinizing government’s speech-related restric

tions differently depending upon the general category of

activity. Compare, e.g., Burson v. Freeman, 504 U. S. 191

(1992) (plurality opinion), (political speech), with Central

Hudson Gas & Elec. Corp. v. Public Serv. Comm’n of N. Y.,

447 U. S. 557 (1980) (commercial speech), and Rust v.

Sullivan, 500 U. S. 173 (1991) (government speech).

(2) Where the speech of government employees is at

issue, the First Amendment offers protection only where

the offer of protection itself will not unduly interfere with

2 GARCETTI v. CEBALLOS

BREYER, J., dissenting

legitimate governmental interests, such as the interest in

efficient administration. That is because the government,

like any employer, must have adequate authority to direct

the activities of its employees. That is also because effi

cient administration of legislatively authorized programs

reflects the constitutional need effectively to implement

the public’s democratically determined will.

(3) Consequently, where a government employee speaks

“as an employee upon matters only of personal interest,”

the First Amendment does not offer protection. Connick v.

Myers, 461 U. S. 138, 147 (1983). Where the employee

speaks “as a citizen . . . upon matters of public concern,”

the First Amendment offers protection but only where the

speech survives a screening test. Pickering v. Board of Ed.

of Township High School Dist. 205, Will Cty., 391 U. S.

563, 568 (1968). That test, called, in legal shorthand,

“Pickering balancing,” requires a judge to “balance . . . the

interests” of the employee “in commenting upon matters of

public concern and the interest of the State, as an em

ployer, in promoting the efficiency of the public services it

performs through its employees.” Ibid. See also Connick,

supra, at 142.

(4) Our prior cases do not decide what screening test a

judge should apply in the circumstances before us, namely

when the government employee both speaks upon a mat

ter of public concern and does so in the course of his ordi

nary duties as a government employee.

II

The majority answers the question by holding that

“when public employees make statements pursuant to

their official duties, the employees are not speaking as

citizens for First Amendment purposes, and the Constitu

tion does not insulate their communications from em

ployer discipline.” Ante, at 9. In a word, the majority

says, “never.” That word, in my view, is too absolute.

Cite as: 547 U. S. ____ (2006) 3

BREYER, J., dissenting

Like the majority, I understand the need to “affor[d]

government employers sufficient discretion to manage

their operations.” Ante, at 11. And I agree that the Con

stitution does not seek to “displac[e] . . . managerial dis

cretion by judicial supervision.” Ibid. Nonetheless, there

may well be circumstances with special demand for consti

tutional protection of the speech at issue, where govern

mental justifications may be limited, and where adminis

trable standards seem readily available—to the point

where the majority’s fears of department management by

lawsuit are misplaced. In such an instance, I believe that

courts should apply the Pickering standard, even though

the government employee speaks upon matters of public

concern in the course of his ordinary duties.

This is such a case. The respondent, a government

lawyer, complained of retaliation, in part, on the basis of

speech contained in his disposition memorandum that he

says fell within the scope of his obligations under Brady v.

Maryland, 373 U. S. 83 (1963). The facts present two

special circumstances that together justify First Amend

ment review.

First, the speech at issue is professional speech—the

speech of a lawyer. Such speech is subject to independent

regulation by canons of the profession. Those canons

provide an obligation to speak in certain instances. And

where that is so, the government’s own interest in forbid

ding that speech is diminished. Cf. Legal Services Corpo

ration v. Velazquez, 531 U. S. 533, 544 (2001) (“Restricting

LSC [Legal Services Corporation] attorneys in advising

their clients and in presenting arguments and analyses to

the courts distorts the legal system by altering the tradi

tional role of the attorneys”). See also Polk County v.

Dodson, 454 U. S. 312, 321 (1981) (“[A] public defender is

not amenable to administrative direction in the same

sense as other employees of the State”). See generally

Post, Subsidized Speech, 106 Yale L. J. 151, 172 (1996)

4 GARCETTI v. CEBALLOS

BREYER, J., dissenting

(“[P]rofessionals must always qualify their loyalty and

commitment to the vertical hierarchy of an organization

by their horizontal commitment to general professional

norms and standards”). The objective specificity and

public availability of the profession’s canons also help to

diminish the risk that the courts will improperly interfere

with the government’s necessary authority to manage its

work.

Second, the Constitution itself here imposes speech

obligations upon the government’s professional employee.

A prosecutor has a constitutional obligation to learn of, to

preserve, and to communicate with the defense about

exculpatory and impeachment evidence in the govern

ment’s possession. Kyles v. Whitley, 514 U. S. 419, 437

(1995); Brady, supra. So, for example, might a prison

doctor have a similar constitutionally related professional

obligation to communicate with superiors about seriously

unsafe or unsanitary conditions in the cellblock. Cf.

Farmer v. Brennan, 511 U. S. 825, 832 (1994). There may

well be other examples.

Where professional and special constitutional obliga

tions are both present, the need to protect the employee’s

speech is augmented, the need for broad government

authority to control that speech is likely diminished, and

administrable standards are quite likely available. Hence,

I would find that the Constitution mandates special pro

tection of employee speech in such circumstances. Thus I

would apply the Pickering balancing test here.

III

While I agree with much of JUSTICE SOUTER’s analysis, I

believe that the constitutional standard he enunciates

fails to give sufficient weight to the serious managerial

and administrative concerns that the majority describes.

The standard would instruct courts to apply Pickering

balancing in all cases, but says that the government

Cite as: 547 U. S. ____ (2006) 5

BREYER, J., dissenting

should prevail unless the employee (1) “speaks on a matter

of unusual importance,” and (2) “satisfies high standards

of responsibility in the way he does it.” Ante, at 8 (dissent

ing opinion). JUSTICE SOUTER adds that “only comment on

official dishonesty, deliberately unconstitutional action,

other serious wrongdoing, or threats to health and safety

can weigh out in an employee’s favor.” Id., at 9.

There are, however, far too many issues of public con

cern, even if defined as “matters of unusual importance,”

for the screen to screen out very much. Government ad

ministration typically involves matters of public concern.

Why else would government be involved? And “public

issues,” indeed, matters of “unusual importance,” are often

daily bread-and-butter concerns for the police, the intelli

gence agencies, the military, and many whose jobs involve

protecting the public’s health, safety, and the environ

ment. This aspect of JUSTICE SOUTER’s “adjustment” of

“the basic Pickering balancing scheme” is similar to the

Court’s present insistence that speech be of “legitimate

news interest”, ibid., when the employee speaks only as a

private citizen. See San Diego v. Roe, 543 U. S. 77, 83–84

(2004) (per curiam). It gives no extra weight to the gov

ernment’s augmented need to direct speech that is an

ordinary part of the employee’s job-related duties.

Moreover, the speech of vast numbers of public employ

ees deals with wrongdoing, health, safety, and honesty: for

example, police officers, firefighters, environmental pro

tection agents, building inspectors, hospital workers, bank

regulators, and so on. Indeed, this categorization could

encompass speech by an employee performing almost any

public function, except perhaps setting electricity rates.

Nor do these categories bear any obvious relation to the

constitutional importance of protecting the job-related

speech at issue.

The underlying problem with this breadth of coverage is

that the standard (despite predictions that the govern

6 GARCETTI v. CEBALLOS

BREYER, J., dissenting

ment is likely to prevail in the balance unless the speech

concerns “official dishonesty, deliberately unconstitutional

action, other serious wrongdoing, or threats to health and

safety,” ante, at 9), does not avoid the judicial need to

undertake the balance in the first place. And this form of

judicial activity—the ability of a dissatisfied employee to

file a complaint, engage in discovery, and insist that the

court undertake a balancing of interests—itself may inter

fere unreasonably with both the managerial function (the

ability of the employer to control the way in which an

employee performs his basic job) and with the use of other

grievance-resolution mechanisms, such as arbitration,

civil service review boards, and whistle-blower remedies,

for which employees and employers may have bargained

or which legislatures may have enacted.

At the same time, the list of categories substantially

overlaps areas where the law already provides nonconsti

tutional protection through whistle-blower statutes and

the like. See ante, at 13 (majority opinion); ante, at 13–15

(SOUTER, J., dissenting). That overlap diminishes the

need for a constitutional forum and also means that

adoption of the test would authorize federal Constitution-

based legal actions that threaten to upset the legislatively

struck (or administratively struck) balance that those

statutes (or administrative procedures) embody.

IV

I conclude that the First Amendment sometimes does

authorize judicial actions based upon a government em

ployee’s speech that both (1) involves a matter of public

concern and also (2) takes place in the course of ordinary

job-related duties. But it does so only in the presence of

augmented need for constitutional protection and dimin

ished risk of undue judicial interference with governmen

tal management of the public’s affairs. In my view, these

conditions are met in this case and Pickering balancing is

consequently appropriate.

With respect, I dissent.