- The Washington Times - Monday, June 5, 2006

To see why the presence of Justices John Roberts and Samuel Alito on the Supreme Court is so crucial, look no further than the court’s split 5-4 decision last week in Garcetti vs. Ceballos. These two conservative jurists helped ensure that government employees cannot become freelance policy-makers when they happen to disagree with their bosses’ decisions. The balance might have tipped in the opposite direction without them.

In the case at hand, the plaintiff, Los Angeles Deputy District Attorney Richard Ceballos, claimed that his First Amendment rights were violated when (as he asserted) he was demoted and reassigned for writing a dissenting memorandum arguing that police lied to obtain a search warrant. Mr. Ceballos tipped off the defense about the memo’s existence, after which Mr. Ceballos’ testimony was subpoenaed in support of the defendant.

No one challenges the right — nay, the duty — of a person in Mr. Ceballos’ position to be a whistleblower if the situation requires it. To varying degrees, both federal and state law protect whistleblowers who identify misconduct during the course of official business. This is to the good. But to extend First Amendment free-speech protections to the everyday business of government workers is to accord attributes of citizenship to their jobs — the holding of which is a privilege, not a right. Doing so would undermine the hierarchies of responsibility and decision-making in government. If every dissenting bureaucrat’s opinion were protected by the First Amendment, the views of employees would be treated like those of citizens in an open forum. Nothing would ever get done.

“When public employees make statements pursuant to their official duties, they are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline…Restricting speech that owes its existence to a public employee’s professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen,” wrote Justice Anthony Kennedy for the Court. He was joined by Justices Clarence Thomas and Antonin Scalia and the two recent Bush appointees: Justices Roberts and Alito.

The four reliable Supreme Court liberals — David H. Souter, John Paul Stevens, Ruth Bader Ginsberg and Stephen Breyer — dissented in three separate opinions.

Kudos to the two new justices, as well as the erstwhile conservative Mr. Kennedy, for reminding government employees that the liberties they are afforded as citizens are not the same ones they are afforded at the office.

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