Not the High Court's Finest Hour

Justice Anthony Kennedy sketched the facts in his opinion for the court. Ceballos was a deputy district attorney in Los Angeles County, Calif. He was not at the bottom of the totem pole, but he wasn't near the top either. He did have some authority to influence the disposition of criminal cases. One day, six years ago, a defense attorney came to him and asked for a review of the preliminary case against his client. It appeared that some critical evidence might have been obtained through serious misrepresentations.




Ceballos became convinced that the evidence was too shaky to take to trial. He twice relayed his conclusions to his principal supervisor, Frank Sundstedt. Finally and formally, he recommended in writing that the charge be dismissed. Sundstedt called a staff meeting. The participants sharply disagreed. In the end, Sundstedt decided to go ahead with the case.

Defense counsel then moved formally to challenge the evidence. The trial court held a hearing. To the considerable embarrassment of the district attorney's office, the defense summoned Ceballos as a witness. Under oath he expressed his doubts about the prosecution. This may have been a manifestation of the highest principles of the bar; it may have been a splendid example of free speech in the public interest. The First Amendment may seldom have glowed so brightly as it glowed that day in Pomona. Milton — that's John Milton — would have been proud.

It will not surprise many readers to learn that life soon became miserable for the deputy district attorney. He was denied a promotion, transferred to another courthouse and demoted from his position as a calendar deputy. Eventually he sued the county for violation of his civil rights. He won in the 9th Circuit but lost in the Supreme Court a week ago.

In his opinion for the majority, Justice Kennedy first gave away some easy points. Public employees, such as Richard Ceballos, "do not surrender all their First Amendment rights by reason of their employment." Indeed, in certain circumstances, a public employee may speak with impunity "as a citizen" addressing matters of public concern. He recalled Thurgood Marshall's opinion in the famous case of Marvin Pickering in 1968. There the Supreme Court ruled unanimously that an Illinois schoolteacher could not be fired for writing a letter to a newspaper criticizing the allocation of school funds.

Still making nice, Kennedy conceded that the First Amendment limits the county's ability to restrict the freedom of speech of its employees as private citizens. In prior cases, "the court has acknowledged the importance of promoting the public's interest in receiving the well-informed views of government employees engaged in civic discussion."

At last he ran out of nice. In the case at hand, Ceballos was not speaking as a private citizen. He was speaking as a deputy prosecutor "fulfilling a responsibility to advise his superiors about how best to proceed with a pending case." The First Amendment cannot insulate him from employer discipline. "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 reflects the exercise of employer control over what the employer itself has commissioned or created."

In a solo dissent, Justice John Paul Stevens found Kennedy's opinion not only "misguided" but also "quite wrong." Justice Stephen Breyer, also solo, wrote six dissenting pages in praise of balance.

Justice David Souter, joined by both Stevens and Justice Ruth Bader Ginsburg, also made nice, sort of. He agreed with Kennedy that the D.A.'s office has substantial interests in effectuating its chosen policy. His colleagues were rightly concerned about the "office uproars" that could be created by official communications lacking in consistency. An employee such as Ceballos who speaks in the course of his duties "should not prevail on balance unless he speaks on a matter of unusual importance and satisfies high standards of responsibility in the way he does it."

All clear? The thought will not go away that this was not the high court's finest hour.

(Letters to Mr. Kilpatrick should be sent by e-mail to kilpatjj@aol.com.)

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