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

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Cite as: 547 U. S. ____ (2006)3BREYER, J., dissentingLike the majority, I understand the need to “affor[d]government employers sufficient discretion to managetheir operations.” Ante, at 11. And I agree that the Constitutiondoes not seek to “displac[e] . . . managerial discretionby judicial supervision.” Ibid. Nonetheless, theremay well be circumstances with special demand for constitutionalprotection of the speech at issue, where governmentaljustifications may be limited, and where administrablestandards seem readily available—to the pointwhere the majority’s fears of department management bylawsuit are misplaced. In such an instance, I believe thatcourts should apply the Pickering standard, even thoughthe government employee speaks upon matters of publicconcern in the course of his ordinary duties.This is such a case. The respondent, a governmentlawyer, complained of retaliation, in part, on the basis ofspeech contained in his disposition memorandum that hesays fell within the scope of his obligations under Brady v.Maryland, 373 U. S. 83 (1963). The facts present twospecial circumstances that together justify First Amendmentreview.First, the speech at issue is professional speech—thespeech of a lawyer. Such speech is subject to independentregulation by canons of the profession. Those canonsprovide an obligation to speak in certain instances. Andwhere that is so, the government’s own interest in forbiddingthat speech is diminished. Cf. Legal Services Corporationv. Velazquez, 531 U. S. 533, 544 (2001) (“RestrictingLSC [Legal Services Corporation] attorneys in advisingtheir clients and in presenting arguments and analyses tothe courts distorts the legal system by altering the traditionalrole of the attorneys”). See also Polk County v.Dodson, 454 U. S. 312, 321 (1981) (“[A] public defender isnot amenable to administrative direction in the samesense as other employees of the State”). See generallyPost, Subsidized Speech, 106 Yale L. J. 151, 172 (1996)
4 GARCETTI v. CEBALLOSBREYER, J., dissenting(“[P]rofessionals must always qualify their loyalty andcommitment to the vertical hierarchy of an organizationby their horizontal commitment to general professionalnorms and standards”). The objective specificity andpublic availability of the profession’s canons also help todiminish the risk that the courts will improperly interferewith the government’s necessary authority to manage itswork.Second, the Constitution itself here imposes speechobligations upon the government’s professional employee.A prosecutor has a constitutional obligation to learn of, topreserve, and to communicate with the defense aboutexculpatory and impeachment evidence in the government’spossession. Kyles v. Whitley, 514 U. S. 419, 437(1995); Brady, supra. So, for example, might a prisondoctor have a similar constitutionally related professionalobligation to communicate with superiors about seriouslyunsafe or unsanitary conditions in the cellblock. Cf.Farmer v. Brennan, 511 U. S. 825, 832 (1994). There maywell be other examples.Where professional and special constitutional obligationsare both present, the need to protect the employee’sspeech is augmented, the need for broad governmentauthority to control that speech is likely diminished, andadministrable standards are quite likely available. Hence,I would find that the Constitution mandates special protectionof employee speech in such circumstances. Thus Iwould apply the Pickering balancing test here.IIIWhile I agree with much of JUSTICE SOUTER’s analysis, Ibelieve that the constitutional standard he enunciatesfails to give sufficient weight to the serious managerialand administrative concerns that the majority describes.The standard would instruct courts to apply Pickeringbalancing in all cases, but says that the government
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04-473 - Garcetti v. Ceballos - Supreme Court of the United States

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