04-473 - Garcetti v. Ceballos - Supreme Court of the United States

Cite as: 547 U. S. ____ (2006)9SOUTER, J., dissentingtutional action, other serious wrongdoing, or threats tohealth and safety can weigh out in an employee’s favor. Ifpromulgation of this standard should fail to discouragemeritless actions premised on 42 U. S. C. §1983 (or Bivensv. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971))before they get filed, the standard itself would sift themout at the summary-judgment stage. 5My second reason for adapting Pickering to the circumstancesat hand is the experience in Circuits that haverecognized claims like Ceballos’s here. First Amendmentprotection less circumscribed than what I would recognizehas been available in the Ninth Circuit for over 17 years,and neither there nor in other Circuits that accept claimslike this one has there been a debilitating flood of litigation.There has indeed been some: as represented by Ceballos’slawyer at oral argument, each year over the last five years,approximately 70 cases in the different Courts of Appealsand approximately 100 in the various District Courts. Tr. ofOral Arg. 58–59. But even these figures reflect a readinessto litigate that might well have been cooled by my viewabout the importance required before Pickering treatment isin order.For that matter, the majority’s position comes with noguarantee against factbound litigation over whether apublic employee’s statements were made “pursuant to . . .official duties,” ante, at 9. In fact, the majority invitessuch litigation by describing the enquiry as a “practicalone,” ante, at 13, apparently based on the totality of employmentcircumstances. 6 See n. 2, supra. Are prosecu-——————5As I also said, a public employer is entitled (and obliged) to imposehigh standards of honesty, accuracy, and judgment on employees whospeak in doing their work. These criteria are not, however, likely todiscourage meritless litigation or provide a handle for summary judgment.The employee who has spoken out, for example, is unlikely toblame himself for prior bad judgment before he sues for retaliation.6According to the majority’s logic, the litigation it encourages would