(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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Opinion of the Court
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.