A Free-Speech Puzzle

The Supreme Court limits the reach of the First Amendment.

IF RICHARD Ceballos's allegations are true, some law should protect him. Mr. Ceballos, a prosecutor with the Los Angeles district attorney's office, claims he suffered professional retaliation for questioning the accuracy of a search warrant affidavit upon which his office was relying in a criminal case. Mr. Ceballos wrote memos, expressed his views in meetings and ultimately testified for the defense -- after which he was transferred and denied a promotion. If his case, decided last week by a 5 to 4 vote at the Supreme Court, asked merely whether whistleblowers need strong legal protections, it would have been an easy one.

But the case presents a far more difficult puzzle: whether the First Amendment right to free speech protects Mr. Ceballos's on-the-job expressions. The court ruled that it does not. On balance, we think that's right.

There is no dispute among the justices that the First Amendment protects the right of public employees to speak out as citizens, both in the workplace and in public. Similarly, no justice contends that it generally precludes routine office discipline for bad conduct -- much of which is verbal. But what about speech that does not merely take place in the workplace but is actually part of the government employee's job? Writing for the majority, Justice Anthony M. Kennedy declared: "When public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline."

The majority's principle creates an uncomfortable anomaly: The employee gets greater protection by going public than by going through channels. Moreover, one can imagine speech by public employees in the course of their jobs for which robust First Amendment protection seems necessary -- most notably, that of professors at public universities, an arena that the court explicitly reserved as a possible exception.

Still, the dissenters failed to pose a viable alternative. Justice John Paul Stevens suggested that the First Amendment protects employees like Mr. Ceballos "sometimes." Justice David H. Souter said that free-speech rights should trump employers' ability to discipline an employee only when the employee "speaks on a matter of unusual importance and satisfies high standards of responsibility in the way he does it" -- hardly a precise test. Justice Stephen G. Breyer, who offered the most plausible alternative, would limit free-speech protections to situations "where professional and special constitutional obligations are both present" -- such as, say, Mr. Ceballos's obligation of fairness to a criminal defendant. But would the First Amendment protect a prosecutor from discipline if he wrongly insisted internally in case after case that the evidence didn't support the government's prosecution? In Mr. Ceballos's case, a court ultimately upheld the search to which he objected.

In the end, the First Amendment seems a bad fit for shielding intragovernmental debate. Protecting people like Mr. Ceballos should be the province of whistle-blower protection laws, which need to be strong enough to prevent retaliations of the sort he claims.