OPINION OF THE COURT GARCETTI V. CEBALLOS 547 U. S. ____ (2006) 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
expression.” 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 employee’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 exercised certain
supervisory responsibilities over other lawyers. 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
challenge, 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
referred 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 warrant. His doubts arose from
his conclusion that the roadway’s composition in some places made
it difficult or impossible 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 explanation 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 another
memo, this one describing a second telephone conversation between
Ceballos and the warrant affiant.

															   Based on Ceballos’ statements, a meeting was
held to discuss the affidavit. Attendees included Ceballos,
Sundstedt, and Najera, as well as the warrant affiant and other
employees from the sheriff’s department. The meeting allegedly
became heated, with one lieutenant sharply criticizing Ceballos for
his handling of the case.

															   Despite Ceballos’ concerns, Sundstedt decided
to proceed 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 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 deputy
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 Fourteenth 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 constitutionally
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 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 governmental 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 employment
responsibility.” Id. , at 1174–1175 (citing cases including 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 proceeded 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 disruption
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 emphasized 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
view, “when public employees speak in the course of carrying 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 exercise 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 presumed to have in any way
either impeded the teacher’s proper performance of his daily duties
in the classroom or 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 administration 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 government 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 restrictions 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 enormous 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
indeed has far broader powers than does the government as
sovereign”). Government employers, like private employers, 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 constitutional 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 citizen who works for the government is nonetheless a
citizen. The First Amendment limits the ability of a public
employer 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
(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 engaging in civic discussion. Pickering again provides an instructive 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
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 employees’
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 promote 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.” Connick , 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
misrepresentations. He conveyed his opinion and recommendation in a
memo to his supervisor. That Ceballos expressed his views inside
his office, rather than publicly, is not dispositive. Employees in
some cases may receive First Amendment 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’ employment, but this, too, is nondispositive.
The First Amendment 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 community 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 expressions 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 responsibility 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
purposes, and the Constitution does not insulate their
communications from employer discipline.

															   Ceballos wrote his disposition memo because
that is 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 significant point is that the memo was
written pursuant to Ceballos’ official duties. 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 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 similarities 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
supervising 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 performed the tasks he was paid to
perform, Ceballos acted as a government employee. The fact that his
duties sometimes 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 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 employee in
his or her professional capacity. Official communications 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. 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’
superiors 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 government employees and their
superiors in the course of official 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 employee is simply performing his
or her job duties, there is no warrant for a similar degree of
scrutiny. To hold otherwise would be to demand permanent judicial
intervention 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 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 Amendment protection because that is the kind of activity
engaged 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 citizens 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 responsibilities,
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 government 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 privately 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 Ceballos’ memo falls
into this category, his allegation of unconstitutional retaliation
must fail.

															   Two final points warrant mentioning. First, as
indicated above, the parties in this case do not dispute that
Ceballos wrote his disposition memo pursuant to his employment
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 description 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 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 obligations 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
criminal 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 constitutional 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 Amendment shields from discipline the expressions
employees make pursuant to their professional duties. Our
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.

															   The judgment of the Court of Appeals is
reversed, and the case is remanded for proceedings consistent with
this opinion.

															It is so ordered. SOUTER, J., DISSENTING GARCETTI V. CEBALLOS 547 U. S. ____ (2006) 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
purposes, and the Constitution does not insulate their
communications from employer discipline.” Ante , at 9. I
respectfully dissent. I agree with the majority that a government
employer has substantial interests in effectuating 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
wrongdoing and threats to health and safety can outweigh the
government’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 protection 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
employee 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 employee’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 government 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 information 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 qualified 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 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 collective-bargaining negotiations affecting professional
employment. Madison noted that the teacher “addressed the
school board not merely as one of its employees but also as a
concerned 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 conclusion 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 personnel 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 the principal
disapproved of hiring minority job applicants. This is an odd place
to draw a distinction,[ Footnote
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 individual 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.[ Footnote 2 ]

															   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 unfavorable comment when the teacher under
review is the superintendent’s daughter.) Would anyone deny that a
prosecutor 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 majority says the First Amendment
gives Ceballos no protection, 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;”[ Footnote 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 employers most want to attract.[ Footnote 4 ] There is no question that 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 perceived in the
speech of public employees as a class: “Underlying 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 operations of their public employers, operations
which are of 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 receiving 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 attempt to bribe him, or when a law
enforcement officer expressly balks at a superior’s order to
violate constitutional rights he is sworn to protect. (The
majority, however, 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 communications 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
protection against any official retaliation for things said on the
job? Is it not possible to respect the unchallenged individual 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 undoubted 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
legitimate 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
importance and satisfies high standards of responsibility in the
way he does it. The examples I have already given indicate the
eligible subject matter, and it is fair to say 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. 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.[ Footnote 5 ]

															   My second reason for adapting Pickering to the circumstances 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
employment circumstances.[ Footnote
6 ] See n. 2, supra . Are prosecutors’
discretionary statements about cases addressed to the press on the
courthouse steps made “pursuant to their official duties”? Are
government nuclear scientists’ complaints 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
employment is (or should be treated as) the government’s own
speech, see ante , at 10, and should thus be differentiated
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 interpretation 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 government appropriates public funds to promote
a particular policy of its own it is entitled to say what it
wishes.” Rosenberger, supra , at 833.

															   The key to understanding the
difference between this case and Rust lies in the terms of
the respective employees’ jobs and, in particular, the extent to
which those terms require espousal of a substantive position
prescribed by the government in advance. Some public employees 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
abstract point of favoring respect for law and its evenhanded
enforcement, subjects that are not at the level of controversy in
this case and were not in Rust. Unlike the doctors 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 forbidden. 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
statement that created needless tension among law enforcement
agencies would be a fair subject of concern, and the same would be
true of inaccurate statements or false ones 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 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.” Ante , at
10.

															This ostensible domain beyond the pale of the First
Amendment is spacious enough to include even the teaching 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 recognized that, given the important purpose
of public education and the expansive freedoms of speech and
thought associated 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
safeguarding academic freedom, which is of transcendent value to
all of us and not merely to the teachers concerned. That freedom is
therefore a special concern of the First Amendment, which does not
tolerate laws that cast a pall of orthodoxy 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 freedom and political
expression—areas in which government should be extremely reticent
to tread”).

															B

															   The majority’s second argument
for its disputed limitation of Pickering doctrine is that
the First Amendment has little or no work to do here owing to an
assertedly comprehensive complement of state and national statutes
protecting 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.[ Footnote 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 was fired after a private conversation
with the school principal. In any event, the combined variants of
statutory 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 government workers,
including the employees of municipalities and other
subdivisions;[ Footnote 8 ]
others stop at state employees.[ Footnote 9 ] Some limit protection to employees who tell
their bosses before they speak out;[ Footnote 10 ] others forbid bosses from imposing any
requirement to warn.[ Footnote
11 ] As for the federal Whistleblower 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 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.[ Footnote 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 understanding 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 jurisdictions that happened to employ
them.

															III

															   The Court remands because the
Court of Appeals considered only the disposition memorandum and
because Ceballos charges retaliation for some speech apparently
outside the ambit of utterances “pursuant to official duties.” 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 focus.[ Footnote 13 ] Ceballos says he sought his position out of
a personal 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 unnecessarily 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 fabrications. 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 supervisors retaliated against him[ Footnote 14 ] not only for his written
reports, 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
challenging 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 speaking at the bar
meeting.[ Footnote 15 ] As I
mentioned, the Court of Appeals saw no need to address the
protection afforded to Ceballos’s statements other than the
disposition memorandum, 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 independently to protect the integrity of the
judicial process. Footnote 1 It seems stranger still in light of the
majority’s concession of some First Amendment protection when a
public employee repeats statements made pursuant to his duties but
in a separate, public forum or in a letter to a newspaper. Ante, at 12. Footnote 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 administration of the
school. Hence today’s rule presents the regrettable prospect that
protection under Pickering v. Board of Ed. of Township
High School Dist. 205, Will Cty., 391 U. S. 563 (1968), may be
diminished by expansive 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. Footnote 3 R. Frost, Two Tramps in Mud Time, Collected
Poems, Prose, & Plays 251, 252 (R. Poirier & M. Richardson
eds. 1995). Footnote 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, is telling anyone who will listen that
its work “provides the personal satisfaction and fulfillment that
comes with knowing you are contributing essential services to the
citizens of Los Angeles County.” Career Opportunities,
http://da.co.la.ca.us/hr/default.htm (all Internet materials 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 Government
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 repealed, Office of Government Ethics Authorization Act of
1996, Pub. L. 104–179, §4, 110 Stat. 1566. Footnote 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 judgment. The employee who has spoken
out, for example, is unlikely to blame himself for prior bad
judgment before he sues for retaliation. Footnote 6 According to the majority’s logic, the
litigation it encourages would have the unfortunate result of
“demand[ing] permanent judicial intervention in the conduct of
governmental operations,” ante , at 11. Footnote 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 “§1983 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 incompatible with individual enforcement under
§1983. See Rancho Palos Verdes v. Abrams, 544 U. S. 113 ,
119–120 (2005). Footnote 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.). Footnote 9 Ala. 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). Footnote 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). Footnote 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). Footnote 12 See n. 4, supra . Footnote 13 This case comes to the Court on the motions
of petitioners for summary judgment, and as such, “[t]he evidence
of [Ceballos] is to be believed, and all justifiable inferences are
to be drawn in his favor.” Anderson v. Liberty Lobby,
Inc., 477 U. S.
242 , 255 (1986). Footnote 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. Before transferring
Ceballos, Najera offered him a choice between transferring and
remaining at the Pomona Branch prosecuting misdemeanors instead of
felonies. When Ceballos refused to choose, Najera transferred
him. Footnote 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 decreased
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 disharmony and distrust caused by Ceballos’s
actions. E.g., App. 477–478. 547 U. S. ____ (2006) GARCETTI V. CEBALLOS 547 U. S. ____ (2006) 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
discipline 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?*

															   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, rejected “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 exactly 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.”

															* See, e.g., Branton v. Dallas , 272 F. 3d 730 (CA5 2001) (police internal
investigator demoted by police chief after bringing the false
testimony 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 political 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 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”). BREYER, J., DISSENTING GARCETTI V. CEBALLOS 547 U. S. ____ (2006) 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 government 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 contexts,
scrutinizing government’s speech-related restrictions 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 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
efficient 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 employer, 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 matter of
public concern and does so in the course of his ordinary 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 Constitution does not
insulate their communications from employer discipline.” Ante , at 9. In a word, the majority says, “never.” That
word, in my view, is too absolute.

															   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 Constitution does not seek to “displac[e] … managerial
discretion by judicial supervision.” Ibid . Nonetheless,
there may well be circumstances with special demand for
constitutional protection of the speech at issue, where
governmental justifications may be limited, and where administrable
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
Amendment 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 forbidding that speech is
diminished. Cf. Legal Services Corporation 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 traditional
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) (“[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 government’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
obligations 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 protection 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 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
(dissenting 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 concern, even if defined as “matters of unusual
importance,” for the screen to screen out very much. Government
administration 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 intelligence agencies, the military,
and many whose jobs involve protecting the public’s health, safety,
and the environment. 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
government’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
employees deals with wrongdoing, health, safety, and honesty: for
example, police officers, firefighters, environmental protection
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
government 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 interfere 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
nonconstitutional 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 employee’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 diminished risk of
undue judicial interference with governmental 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.