547 U.S. 410 GARCETTI v. CEBALLOS 1951

1951GARCETTI v. CEBALLOSCite as 126 S.Ct. 1951 (2006)

547 U.S. 410

opinion, I remain persuaded that my voteto deny the State’s petition for certiorariwas correct.

,

547 U.S. 410, 164 L.Ed.2d 689

Gil GARCETTI et al., Petitioners,

v.

Richard CEBALLOS.No. 04–473.

Argued March 21, 2006.

Decided May 30, 2006.

Background: Deputy district attorneyfiled § 1983 complaint against county andsupervisors at district attorneys’ office, al-leging that he was subject to adverse em-ployment actions in retaliation for engag-ing in protected speech, that is, for writinga disposition memorandum in which herecommended dismissal of a case on thebasis of purported governmental miscon-duct. The United States District Court forthe Central District of California, A. How-ard Matz, J., granted defendants’ motionfor summary judgment, and district attor-ney appealed. The Court of Appeals forthe Ninth Circuit, Reinhardt, CircuitJudge, 361 F.3d 1168, reversed and re-manded. Certiorari was granted.

Holdings: The United States SupremeCourt, Justice Kennedy, held that:

(1) when public employees make state-ments pursuant to their official duties,they are not speaking as citizens forFirst Amendment purposes, and theConstitution does not insulate theircommunications from employer disci-pline, and

(2) here, district attorney did not speak asa citizen when he wrote his memo and,

thus, his speech was not protected bythe First Amendment.

Reversed and remanded.

Justice Stevens filed a dissenting opinion.

Justice Souter filed a dissenting opinion inwhich Justices Stevens and Ginsburgjoined.

Justice Breyer filed a dissenting opinion.

1. Constitutional Law O1937A state cannot condition public em-

ployment on a basis that infringes theemployee’s constitutionally protected inter-est in freedom of expression. U.S.C.A.Const.Amend. 1.

2. Constitutional Law O1929Public employees do not surrender all

their First Amendment rights by reason oftheir employment; rather, the FirstAmendment protects a public employee’sright, in certain circumstances, to speak asa citizen addressing matters of public con-cern. U.S.C.A. Const.Amend. 1.

3. Constitutional Law O1929, 1931Pursuant to Pickering and its proge-

ny, two inquiries guide interpretation ofthe constitutional protections accorded topublic employee speech: the first requiresdetermining whether the employee spokeas a citizen on a matter of public concern;if not, the employee has no First Amend-ment cause of action based on the govern-ment employer’s reaction to the speech,but if the answer is yes, the possibility of aFirst Amendment claim arises, and thequestion then becomes whether the gov-ernment employer had an adequate justifi-cation for treating the employee different-ly from any other member of the generalpublic. U.S.C.A. Const.Amend. 1.

4. Constitutional Law O1925Government entity has broader dis-

cretion to restrict speech when it acts in

1952 126 SUPREME COURT REPORTER 547 U.S. 410

its role as employer, but the restrictions itimposes must be directed at speech thathas some potential to affect the entity’soperations. U.S.C.A. Const.Amend. 1.

5. Constitutional Law O1181

First Amendment limits the ability ofa public employer to leverage the employ-ment relationship to restrict, incidentallyor intentionally, the liberties employeesenjoy in their capacities as private citizens.U.S.C.A. Const.Amend. 1.


So long as public employees arespeaking as citizens about matters of pub-lic concern, they must face only thosespeech restrictions that are necessary fortheir employers to operate efficiently andeffectively. U.S.C.A. Const.Amend. 1.


While the First Amendment investspublic employees with certain rights, itdoes not empower them to constitutional-ize the employee grievance. U.S.C.A.Const.Amend. 1.


In determining whether a public em-ployee’s speech is entitled to constitutionalprotection, the fact that the employee ex-presses his views inside his office, ratherthan publicly, is not dispositive; employeesin some cases may receive First Amend-ment protection for expressions made atwork. U.S.C.A. Const.Amend. 1.


In determining whether a public em-ployee’s speech is entitled to constitutionalprotection, the fact that the speech con-cerns the subject matter of the employee’semployment is nondispositive; the FirstAmendment protects some expressions re-lated to the speaker’s job. U.S.C.A.Const.Amend. 1.

10. Constitutional Law O1941When public employees make state-

ments pursuant to their official duties, theemployees are not speaking as citizens forFirst Amendment purposes, and the Con-stitution does not insulate their communi-cations from employer discipline.U.S.C.A. Const.Amend. 1.

11. Constitutional Law O1958 District and Prosecuting Attorneys

O3(1)Deputy district attorney did not speak

as a citizen when, pursuant to his officialduties as a calendar deputy, he wrote adisposition memorandum in which he rec-ommended dismissal of a pending criminalcase on the basis of purported governmen-tal misconduct, and so his speech was notprotected by the First Amendment; whenhe went to work and performed the taskshe was paid to perform, district attorneyacted as a government employee, not as acitizen, and fact that his duties sometimesrequired him to speak or write did notprohibit his supervisors from evaluatinghis performance. U.S.C.A. Const.Amend.1; 42 U.S.C.A. § 1983.

12. Constitutional Law O1931When a public employee speaks as a

citizen addressing a matter of public con-cern, the First Amendment requires a deli-cate balancing of the competing interestssurrounding the speech and its conse-quences, which degree of scrutiny is ab-sent when the employee is simply perform-ing his or her job duties. U.S.C.A. Const.Amend. 1.

13. Constitutional Law O1942Public employers may not restrict

employees’ free speech rights by creatingexcessively broad job descriptions; thelisting of a given task in an employee’swritten job description is neither neces-sary nor sufficient to demonstrate thatconducting the task is within the scope of


547 U.S. 411

the employee’s professional duties, forFirst Amendment purposes. U.S.C.A.Const.Amend. 1.

S 410Syllabus *

Respondent Ceballos, a supervisingdeputy district attorney, was asked by de-fense counsel to review a case in which,counsel claimed, the affidavit police used toobtain a critical search warrant was inac-curate. Concluding after the review thatthe affidavit made serious misrepresenta-tions, Ceballos relayed his findings to hissupervisors, petitioners here, and followedup with a disposition memorandum recom-mending dismissal. Petitioners neverthe-less proceeded with the prosecution. At ahearing on a defense motion to challengethe warrant, Ceballos recounted his obser-vations about the affidavit, but the trialcourt rejected the challenge. Claimingthat petitioners then retaliated against himfor his memo in violation of the First andFourteenth Amendments, Ceballos filed a42 U.S.C. § 1983 suit. The District Courtgranted petitioners summary judgment,ruling, inter alia, that the memo was notprotected speech because Ceballos wrote itpursuant to his employment duties. Re-versing, the Ninth Circuit held that thememo’s allegations were protected underthe First Amendment analysis in Picker-ing v. Board of Ed. of Township HighSchool Dist. 205, Will Cty., 391 U.S. 563,88 S.Ct. 1731, 20 L.Ed.2d 811, and Con-nick v. Myers, 461 U.S. 138, 103 S.Ct.1684, 75 L.Ed.2d 708.

Held: When public employees makestatements pursuant to their official duties,they are not speaking as citizens for FirstAmendment purposes, and the Constitu-tion does not insulate their communica-

tions from employer discipline. Pp. 1957 –1962.

(a) Two inquiries guide interpretationof the constitutional protections accordedpublic employee speech. The first re-quires determining whether the employeespoke as a citizen on a matter of publicconcern. See Pickering, supra, at 568, 88S.Ct. 1731. If the answer is no, the em-ployee has no First Amendment cause ofaction based on the employer’s reaction tothe speech. See Connick, supra, at 147,103 S.Ct. 1684. If the answer is yes, thepossibility of a First Amendment claimarises. The question becomes whether thegovernment employer had an adequatejustification for treating the employee dif-ferently from any other member of thegeneral public. See Pickering, supra, at568, 88 S.Ct. 1731. This consideration re-flects the importance of the relationshipbetween the speaker’s expressions and em-ployment. Without a significant degree ofcontrol over its employSees’411 words andactions, a government employer wouldhave little chance to provide public ser-vices efficiently. Cf. Connick, supra, at143, 103 S.Ct. 1684. Thus, a governmententity has broader discretion to restrictspeech when it acts in its employer role,but the restrictions it imposes must bedirected at speech that has some potentialto affect its operations. On the otherhand, a citizen who works for the govern-ment is nonetheless still a citizen. TheFirst Amendment limits a public employ-er’s ability to leverage the employmentrelationship to restrict, incidentally or in-tentionally, the liberties employees enjoyin their capacities as private citizens. SeePerry v. Sindermann, 408 U.S. 593, 597,92 S.Ct. 2694, 33 L.Ed.2d 570. So long asemployees are speaking as citizens about

* The syllabus constitutes no part of the opinionof the Court but has been prepared by theReporter of Decisions for the convenience of

the reader. See United States v. Detroit Tim-ber & Lumber Co., 200 U.S. 321, 337, 26 S.Ct.282, 50 L.Ed. 499.


matters of public concern, they must faceonly those speech restrictions that are nec-essary for their employers to operate effi-ciently and effectively. See, e.g., Connick,supra, at 147, 103 S.Ct. 1684. Pp. 1957 –1959.

(b) Proper application of the Court’sprecedents leads to the conclusion that theFirst Amendment does not prohibit mana-gerial discipline based on an employee’sexpressions made pursuant to official re-sponsibilities. Because Ceballos’ memofalls into this category, his allegation ofunconstitutional retaliation must fail. Thedispositive factor here is not that Ceballosexpressed his views inside his office, rath-er than publicly, see, e.g., Givhan v. West-ern Line Consol. School Dist., 439 U.S.410, 414, 99 S.Ct. 693, 58 L.Ed.2d 619, northat the memo concerned the subject mat-ter of his employment, see, e.g., Pickering,supra, at 573, 88 S.Ct. 1731. Rather, thecontrolling factor is that Ceballos’ expres-sions were made pursuant to his officialduties. That consideration distinguishesthis case from those in which the FirstAmendment provides protection againstdiscipline. Ceballos wrote his dispositionmemo because that is part of what he wasemployed to do. He did not act as acitizen by writing it. The fact that hisduties sometimes required him to speak orwrite does not mean his supervisors wereprohibited from evaluating his perform-ance. Restricting speech that owes itsexistence to a public employee’s profes-sional responsibilities does not infringe anyliberties the employee might have enjoyedas a private citizen. It simply reflects theexercise of employer control over what theemployer itself has commissioned or creat-ed. Cf. Rosenberger v. Rector and Visi-tors of Univ. of Va., 515 U.S. 819, 833, 115S.Ct. 2510, 132 L.Ed.2d 700. This result isconsistent with the Court’s prior emphasison the potential societal value of employeespeech and on affording government em-ployers sufficient discretion to manage

their operations. Ceballos’ proposed con-trary rule, adopted by the Ninth Circuit,would commit state and federal courts to anew, permanent, and intrusive role, man-dating judicial oversight of communica-tions between and among government em-ployees and their superiors in the courseof official business. This displacement ofmanagerial discretion by judicial supervi-sion finds S 412no support in the Court’sprecedents. The doctrinal anomaly theCourt of Appeals perceived in compellingpublic employers to tolerate certain em-ployee speech made publicly but notspeech made pursuant to an employee’sassigned duties misconceives the theoreti-cal underpinnings of this Court’s decisionsand is unfounded as a practical matter.Pp. 1959 – 1962.

(c) Exposing governmental inefficien-cy and misconduct is a matter of consider-able significance, and various measureshave been adopted to protect employeesand provide checks on supervisors whowould order unlawful or otherwise inap-propriate actions. These include federaland state whistle-blower protection lawsand labor codes and, for government attor-neys, rules of conduct and constitutionalobligations apart from the First Amend-ment. However, the Court’s precedentsdo not support the existence of a constitu-tional cause of action behind every state-ment a public employee makes in thecourse of doing his or her job. P. 1962.

361 F.3d 1168, reversed and remand-ed.

KENNEDY, J., delivered the opinionof the Court, in which ROBERTS, C. J.,and SCALIA, THOMAS, and ALITO, JJ.,joined. STEVENS, J., filed a dissentingopinion, post, p. 1962. SOUTER, J., fileda dissenting opinion, in which STEVENSand GINSBURG, JJ., joined, post, p. 1963.


547 U.S. 414

BREYER, J., filed a dissenting opinion,post, p. 1973.

Dan Himmelfarb, for the United Statesas amicus curiae, by special leave of theCourt, supporting the petitioners.

Bonnie E. Robin-Vergeer, for respon-dent.

Cindy S. Lee, Counsel of Record, Jin S.Choi, Franscell, Strickland, Roberts &Lawrence, Glendale, California, Office OfThe County Counsel, Raymond G. Fort-ner, Jr., County Counsel, Philip S. Miller,Assistant County Counsel, Doraine F.Meyer, Senior Deputy County Counsel,Los Angeles, California, Counsel for Peti-tioners.

Cindy S. Lee, Counsel of Record, Jin S.Choi, Franscell, Strickland, Roberts &Lawrence, Glendale, California, Counselfor Petitioners Admitted to the Bar of theSupreme Court on July 17, 1998.

Bonnie I. Robin-Vergeer, Counsel ofRecord, Scott L. Nelson, Brian Wolfman,Public Citizen Litigation Group, Washing-ton, DC, Humberto Guizar Moreno, Becer-ra, Guerrero & Casillas, Montebello, CA,Counsel for Respondent.

For U.S. Supreme Court briefs, see:

2005 WL 1317482 (Pet.Brief)

2005 WL 1801035 (Resp.Brief)

2005 WL 2072142 (Reply.Brief)

Justice KENNEDY delivered theopinion of the Court.

[1] S 413It is well settled that ‘‘a Statecannot condition public employment on abasis that infringes the employee’s consti-tutionally protected interest in freedom ofexpression.’’ Connick v. Myers, 461 U.S.138, 142, 103 S.Ct. 1684, 75 L.Ed.2d 708(1983). The question presented by theinstant case is whether the First Amend-ment protects a government employeefrom discipline based on speech made pur-suant to the employee’s official duties.

I

Respondent Richard Ceballos has beenemployed since 1989 as a deputy districtattorney for the Los Angeles County Dis-trict Attorney’s Office. During the periodrelevant to this case, Ceballos was a calen-dar deputy in the office’s Pomona branch,and in this capacity he exercised certainsupervisory responsibilities over other law-yers. In February 2000, a defense attor-ney contacted Ceballos about a pendingcriminal case. The defense attorney saidthere were inaccuracies in an affidavitused to obtain a critical search warrant.The attorney informed Ceballos that heS 414had filed a motion to traverse, or chal-lenge, the warrant, but he also wantedCeballos to review the case. According toCeballos, it was not unusual for defenseattorneys to ask calendar deputies to in-vestigate aspects of pending cases.

After examining the affidavit and visit-ing the location it described, Ceballos de-termined the affidavit contained seriousmisrepresentations. The affidavit called along driveway what Ceballos thoughtshould have been referred to as a separateroadway. Ceballos also questioned the af-fidavit’s statement that tire tracks ledfrom a stripped-down truck to the premis-es covered by the warrant. His doubtsarose from his conclusion that the road-way’s composition in some places made itdifficult or impossible to leave visible tiretracks.

Ceballos spoke on the telephone to thewarrant affiant, a deputy sheriff from theLos Angeles County Sheriff’s Department,but he did not receive a satisfactory expla-nation for the perceived inaccuracies. Herelayed his findings to his supervisors, pe-titioners Carol Najera and Frank Sundst-edt, and followed up by preparing a dispo-sition memorandum. The memo explained


Ceballos’ concerns and recommended dis-missal of the case. On March 2, 2000,Ceballos submitted the memo to Sundstedtfor his review. A few days later, Ceballospresented Sundstedt with another memo,this one describing a second telephone con-versation between Ceballos and the war-rant affiant.

Based on Ceballos’ statements, a meet-ing was held to discuss the affidavit. At-tendees included Ceballos, Sundstedt, andNajera, as well as the warrant affiant andother employees from the sheriff’s depart-ment. The meeting allegedly becameheated, with one lieutenant sharply criticiz-ing Ceballos for his handling of the case.

Despite Ceballos’ concerns, Sundstedtdecided to proceed with the prosecution,pending disposition of the defense motionto traverse. The trial court held a hearingon the motion. Ceballos was called by thedefense and recounted S 415his observationsabout the affidavit, but the trial court re-jected the challenge to the warrant.

Ceballos claims that in the aftermath ofthese events he was subjected to a seriesof retaliatory employment actions. Theactions included reassignment from his cal-endar deputy position to a trial deputyposition, transfer to another courthouse,and denial of a promotion. Ceballos initi-ated an employment grievance, but thegrievance was denied based on a findingthat he had not suffered any retaliation.Unsatisfied, Ceballos sued in the UnitedStates District Court for the Central Dis-trict of California, asserting, as relevanthere, a claim under Rev. Stat. § 1979, 42U.S.C. § 1983. He alleged petitioners vio-lated the First and Fourteenth Amend-ments by retaliating against him based onhis memo of March 2.

Petitioners responded that no retaliatoryactions were taken against Ceballos andthat all the actions of which he complainedwere explained by legitimate reasons such

as staffing needs. They further contendedthat, in any event, Ceballos’ memo was notprotected speech under the First Amend-ment. Petitioners moved for summaryjudgment, and the District Court grantedtheir motion. Noting that Ceballos wrotehis memo pursuant to his employmentduties, the court concluded he was notentitled to First Amendment protection forthe memo’s contents. It held in the alter-native that even if Ceballos’ speech wasconstitutionally protected, petitioners hadqualified immunity because the rights Ce-ballos asserted were not clearly estab-lished.

The Court of Appeals for the Ninth Cir-cuit reversed, holding that ‘‘Ceballos’s alle-gations of wrongdoing in the memorandumconstitute protected speech under theFirst Amendment.’’ 361 F.3d 1168, 1173(C.A.9 2004). In reaching its conclusionthe court looked to the First Amendmentanalysis set forth in Pickering v. Board ofEd. of Township High School Dist. 205,Will Cty., 391 U.S. 563, 88 S.Ct. 1731, 20L.Ed.2d 811 (1968), and Connick, supra,103 S.Ct. 1684. Connick instructs courtsto begin by considering S 416whether theexpressions in question were made by thespeaker ‘‘as a citizen upon matters of pub-lic concern.’’ See id., at 146–147, 103 S.Ct.1684. The Court of Appeals determinedthat Ceballos’ memo, which recited whathe thought to be governmental misconduct,was ‘‘inherently a matter of public con-cern.’’ 361 F.3d, at 1174. The court didnot, however, consider whether the speechwas made in Ceballos’ capacity as a citizen.Rather, it relied on Circuit precedent re-jecting the idea that ‘‘a public employee’sspeech is deprived of First Amendmentprotection whenever those views are ex-pressed, to government workers or others,pursuant to an employment responsibility.’’Id., at 1174–1175 (citing cases including


547 U.S. 418

Roth v. Veteran’s Admin. of Govt. of Unit-ed States, 856 F.2d 1401 (C.A.9 1988)).

Having concluded that Ceballos’ memosatisfied the public-concern requirement,the Court of Appeals proceeded to balanceCeballos’ interest in his speech against hissupervisors’ interest in responding to it.See Pickering, supra, at 568, 88 S.Ct.1731. The court struck the balance inCeballos’ favor, noting that petitioners‘‘failed even to suggest disruption or ineffi-ciency in the workings of the District At-torney’s Office’’ as a result of the memo.See 361 F.3d, at 1180. The court furtherconcluded that Ceballos’ First Amendmentrights were clearly established and thatpetitioners’ actions were not objectivelyreasonable. See id., at 1181–1182.

Judge O’Scannlain specially concurred.Agreeing that the panel’s decision wascompelled by Circuit precedent, he never-theless concluded Circuit law should berevisited and overruled. See id., at 1185.Judge O’Scannlain emphasized the distinc-tion ‘‘between speech offered by a publicemployee acting as an employee carryingout his or her ordinary job duties and thatspoken by an employee acting as a citizenexpressing his or her personal views ondisputed matters of public import.’’ Id., at1187. In his view, ‘‘when public employeesspeak in the course of carrying out theirroutine, required employment obligations,they have no personal inSterest417 in thecontent of that speech that gives rise to aFirst Amendment right.’’ Id., at 1189.

We granted certiorari, 543 U.S. 1186,125 S.Ct. 1395, 161 L.Ed.2d 188 (2005), andwe now reverse.

II

[2] As the Court’s decisions have not-ed, for many years ‘‘the unchallenged dog-ma was that a public employee had noright to object to conditions placed uponthe terms of employment—including those

which restricted the exercise of constitu-tional rights.’’ Connick, 461 U.S., at 143,103 S.Ct. 1684. That dogma has beenqualified in important respects. See id., at144–145, 103 S.Ct. 1684. The Court hasmade clear that public employees do notsurrender all their First Amendmentrights by reason of their employment.Rather, the First Amendment protects apublic employee’s right, in certain circum-stances, to speak as a citizen addressingmatters of public concern. See, e.g., Pick-ering, supra, at 568, 88 S.Ct. 1731; Con-nick, supra, at 147, 103 S.Ct. 1684; Ran-kin v. McPherson, 483 U.S. 378, 384, 107S.Ct. 2891, 97 L.Ed.2d 315 (1987); UnitedStates v. Treasury Employees, 513 U.S.454, 466, 115 S.Ct. 1003, 130 L.Ed.2d 964(1995).

Pickering provides a useful startingpoint in explaining the Court’s doctrine.There the relevant speech was a teacher’sletter to a local newspaper addressing is-sues including the funding policies of hisschool board. 391 U.S., at 566, 88 S.Ct.1731. ‘‘The problem in any case,’’ theCourt stated, ‘‘is to arrive at a balancebetween the interests of the teacher, as acitizen, in commenting upon matters ofpublic concern and the interest of theState, as an employer, in promoting theefficiency of the public services it performsthrough its employees.’’ Id., at 568, 88S.Ct. 1731. The Court found the teacher’sspeech ‘‘neither [was] shown nor can bepresumed to have in any way either im-peded the teacher’s proper performance ofhis daily duties in the classroom or to haveinterfered with the regular operation ofthe schools generally.’’ Id., at 572–573, 88S.Ct. 1731 (footnote omitted). Thus, theCourt concluded that ‘‘the interest of theschool administration in limiting teachers’opportunities to contribute to public de-bate is not significantly S 418greater than itsinterest in limiting a similar contribution


by any member of the general public.’’Id., at 573, 88 S.Ct. 1731.

[3, 4] Pickering and the cases decidedin its wake identify two inquiries to guideinterpretation of the constitutional protec-tions accorded to public employee speech.The first requires determining whetherthe employee spoke as a citizen on a mat-ter of public concern. See id., at 568, 88S.Ct. 1731. If the answer is no, the em-ployee has no First Amendment cause ofaction based on his or her employer’s reac-tion to the speech. See Connick, supra, at147, 103 S.Ct. 1684. If the answer is yes,then the possibility of a First Amendmentclaim arises. The question becomeswhether the relevant government entityhad an adequate justification for treatingthe employee differently from any othermember of the general public. See Pick-ering, 391 U.S., at 568, 88 S.Ct. 1731. Thisconsideration reflects the importance ofthe relationship between the speaker’s ex-pressions and employment. A governmententity has broader discretion to restrictspeech when it acts in its role as employer,but the restrictions it imposes must bedirected at speech that has some potentialto affect the entity’s operations.

To be sure, conducting these inquiriessometimes has proved difficult. This isthe necessary product of ‘‘the enormousvariety of fact situations in which criticalstatements by teachers and other publicemployees may be thought by their superi-ors TTT to furnish grounds for dismissal.’’Id., at 569., 88 S.Ct. 1731 The Court’soverarching objectives, though, are evi-dent.

When a citizen enters government ser-vice, the citizen by necessity must acceptcertain limitations on his or her freedom.See, e.g., Waters v. Churchill, 511 U.S. 661,671, 114 S.Ct. 1878, 128 L.Ed.2d 686 (1994)(plurality opinion) (‘‘[T]he government asemployer indeed has far broader powers

than does the government as sovereign’’).Government employers, like private em-ployers, need a significant degree of con-trol over their employees’ words and ac-tions; without it, there would be littlechance for the efficient provision of publicservices. Cf. Connick, S 419supra, at 143,103 S.Ct. 1684 (‘‘[G]overnment officescould not function if every employmentdecision became a constitutional matter’’).Public employees, moreover, often occupytrusted positions in society. When theyspeak out, they can express views thatcontravene governmental policies or impairthe proper performance of governmentalfunctions.

[5, 6] At the same time, the Court hasrecognized that a citizen who works for thegovernment is nonetheless a citizen. TheFirst Amendment limits the ability of apublic employer to leverage the employ-ment relationship to restrict, incidentallyor intentionally, the liberties employeesenjoy in their capacities as private citizens.See Perry v. Sindermann, 408 U.S. 593,597, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972).So long as employees are speaking as citi-zens about matters of public concern, theymust face only those speech restrictionsthat are necessary for their employers tooperate efficiently and effectively. See,e.g., Connick, supra, at 147, 103 S.Ct. 1684(‘‘Our responsibility is to ensure that citi-zens are not deprived of fundamentalrights by virtue of working for the govern-ment’’).

The Court’s employee-speech jurispru-dence protects, of course, the constitution-al rights of public employees. Yet theFirst Amendment interests at stake ex-tend beyond the individual speaker. TheCourt has acknowledged the importance ofpromoting the public’s interest in receiv-ing the well-informed views of governmentemployees engaging in civic discussion.Pickering again provides an instructiveexample. The Court characterized its


547 U.S. 421

holding as rejecting the attempt of schooladministrators to ‘‘limi[t] teachers’ oppor-tunities to contribute to public debate.’’391 U.S., at 573, 88 S.Ct. 1731. It alsonoted that teachers are ‘‘the members of acommunity most likely to have informedand definite opinions’’ about school expen-ditures. Id., at 572, 88 S.Ct. 1731. TheCourt’s approach acknowledged the neces-sity for informed, vibrant dialogue in ademocratic society. It suggested, in addi-tion, that widespread costs may arisewhen dialogue is repressed. The Court’smore recent cases have expressed similarconScerns.420 See, e.g., San Diego v. Roe,543 U.S. 77, 82, 125 S.Ct. 521, 160 L.Ed.2d410 (2004) (per curiam) (‘‘Were [publicemployees] not able to speak on [the oper-ation of their employers], the communitywould be deprived of informed opinions onimportant public issues. The interest atstake is as much the public’s interest inreceiving informed opinion as it is the em-ployee’s own right to disseminate it’’ (cita-tion omitted)); cf. Treasury Employees,513 U.S., at 470, 115 S.Ct. 1003 (‘‘Thelarge-scale disincentive to Governmentemployees’ expression also imposes a sig-nificant burden on the public’s right toread and hear what the employees wouldotherwise have written and said’’).

[7] The Court’s decisions, then, havesought both to promote the individual andsocietal interests that are served when em-ployees speak as citizens on matters ofpublic concern and to respect the needs ofgovernment employers attempting to per-form their important public functions.See, e.g., Rankin, 483 U.S., at 384, 107S.Ct. 2891 (recognizing ‘‘the dual role ofthe public employer as a provider of publicservices and as a government entity oper-ating under the constraints of the FirstAmendment’’). Underlying our cases hasbeen the premise that while the FirstAmendment invests public employees with

certain rights, it does not empower themto ‘‘constitutionalize the employee griev-ance.’’ Connick, 461 U.S., at 154, 103S.Ct. 1684.

III

[8] With these principles in mind weturn to the instant case. Respondent Ce-ballos believed the affidavit used to obtaina search warrant contained serious misrep-resentations. He conveyed his opinion andrecommendation in a memo to his supervi-sor. That Ceballos expressed his viewsinside his office, rather than publicly, isnot dispositive. Employees in some casesmay receive First Amendment protectionfor expressions made at work. See, e.g.,Givhan v. Western Line Consol. SchoolDist., 439 U.S. 410, 414, 99 S.Ct. 693, 58L.Ed.2d 619 (1979). Many citizens domuch of their talking inside their respec-tive workplaces, and it would not serve thegoal of treating public S 421employees like‘‘any member of the general public,’’ Pick-ering, 391 U.S., at 573, 88 S.Ct. 1731, tohold that all speech within the office isautomatically exposed to restriction.

[9] The memo concerned the subjectmatter of Ceballos’ employment, but this,too, is nondispositive. The First Amend-ment protects some expressions related tothe speaker’s job. See, e.g., ibid.; Givhan,supra, at 414, 99 S.Ct. 693. As the Courtnoted in Pickering: ‘‘Teachers are, as aclass, the members of a community mostlikely to have informed and definite opin-ions as to how funds allotted to the opera-tion of the schools should be spent. Ac-cordingly, it is essential that they be ableto speak out freely on such questions with-out fear of retaliatory dismissal.’’ 391U.S., at 572, 88 S.Ct. 1731. The same istrue of many other categories of publicemployees.

[10, 11] The controlling factor in Ce-ballos’ case is that his expressions were


made pursuant to his duties as a calendardeputy. See Brief for Respondent 4 (‘‘Ce-ballos does not dispute that he preparedthe memorandum ‘pursuant to his dutiesas a prosecutor’ ’’). That consideration—the fact that Ceballos spoke as a prosecu-tor fulfilling a responsibility to advise hissupervisor about how best to proceed witha pending case—distinguishes Ceballos’case from those in which the FirstAmendment provides protection againstdiscipline. We hold that when public em-ployees make statements pursuant to theirofficial duties, the employees are notspeaking as citizens for First Amendmentpurposes, and the Constitution does notinsulate their communications from em-ployer discipline.

Ceballos wrote his disposition memo be-cause that is part of what he, as a calendardeputy, was employed to do. It is immate-rial whether he experienced some personalgratification from writing the memo; hisFirst Amendment rights do not depend onhis job satisfaction. The significant pointis that the memo was written pursuant toCeballos’ official duties. Restrictingspeech that owes its existence to a publicemployee’s professional responsibilitiesdoes not infringe S 422any liberties the em-ployee might have enjoyed as a privatecitizen. It simply reflects the exercise ofemployer control over what the employeritself has commissioned or created. Cf.Rosenberger v. Rector and Visitors ofUniv. of Va., 515 U.S. 819, 833, 115 S.Ct.2510, 132 L.Ed.2d 700 (1995) (‘‘[W]hen thegovernment appropriates public funds topromote a particular policy of its own it isentitled to say what it wishes’’). Contrast,for example, the expressions made by thespeaker in Pickering, whose letter to thenewspaper had no official significance andbore similarities to letters submitted bynumerous citizens every day.

Ceballos did not act as a citizen when hewent about conducting his daily profession-al activities, such as supervising attorneys,investigating charges, and preparing fil-ings. In the same way he did not speak asa citizen by writing a memo that addressedthe proper disposition of a pending crimi-nal case. When he went to work andperformed the tasks he was paid to per-form, Ceballos acted as a government em-ployee. The fact that his duties sometimesrequired him to speak or write does notmean his supervisors were prohibited fromevaluating his performance.

This result is consistent with our prece-dents’ attention to the potential societalvalue of employee speech. See supra, at1958 – 1959. Refusing to recognize FirstAmendment claims based on governmentemployees’ work product does not preventthem from participating in public debate.The employees retain the prospect of con-stitutional protection for their contribu-tions to the civic discourse. This prospectof protection, however, does not investthem with a right to perform their jobshowever they see fit.

Our holding likewise is supported by theemphasis of our precedents on affordinggovernment employers sufficient discretionto manage their operations. Employershave heightened interests in controllingspeech made by an employee in his or herprofessional capacity. Official communica-tions have official consequences, creating aneed for substantive consistency and clari-ty. Supervisors must ensure S 423that theiremployees’ official communications are ac-curate, demonstrate sound judgment, andpromote the employer’s mission. Ceballos’memo is illustrative. It demanded the at-tention of his supervisors and led to aheated meeting with employees from thesheriff’s department. If Ceballos’ superi-ors thought his memo was inflammatory or


547 U.S. 424

misguided, they had the authority to takeproper corrective action.

[12] Ceballos’ proposed contrary rule,adopted by the Court of Appeals, wouldcommit state and federal courts to a new,permanent, and intrusive role, mandatingjudicial oversight of communications be-tween and among government employeesand their superiors in the course of officialbusiness. This displacement of managerialdiscretion by judicial supervision finds nosupport in our precedents. When an em-ployee speaks as a citizen addressing amatter of public concern, the First Amend-ment requires a delicate balancing of thecompeting interests surrounding thespeech and its consequences. When, how-ever, the employee is simply performinghis or her job duties, there is no warrantfor a similar degree of scrutiny. To holdotherwise would be to demand permanentjudicial intervention in the conduct of gov-ernmental operations to a degree inconsis-tent with sound principles of federalismand the separation of powers.

The Court of Appeals based its holdingin part on what it perceived as a doctrinalanomaly. The court suggested it would beinconsistent to compel public employers totolerate certain employee speech madepublicly but not speech made pursuant toan employee’s assigned duties. See 361F.3d, at 1176. This objection misconceivesthe theoretical underpinnings of our deci-sions. Employees who make public state-ments outside the course of performingtheir official duties retain some possibilityof First Amendment protection becausethat is the kind of activity engaged in bycitizens who do not work for the govern-ment. The same goes for writing a letterto a local newspaper, see Pickering, supra,88 S.Ct. 1731, or discussing politics with aco-worker, see Rankin, S 424483 U.S. 378,107 S.Ct. 2891. When a public employee

speaks pursuant to employment responsi-bilities, however, there is no relevant ana-logue to speech by citizens who are notgovernment employees.

The Court of Appeals’ concern also isunfounded as a practical matter. The per-ceived anomaly, it should be noted, is limit-ed in scope: It relates only to the expres-sions an employee makes pursuant to hisor her official responsibilities, not to state-ments or complaints (such as those at issuein cases like Pickering and Connick ) thatare made outside the duties of employ-ment. If, moreover, a government em-ployer is troubled by the perceived anoma-ly, it has the means at hand to avoid it. Apublic employer that wishes to encourageits employees to voice concerns privatelyretains the option of instituting internalpolicies and procedures that are receptiveto employee criticism. Giving employeesan internal forum for their speech willdiscourage them from concluding that thesafest avenue of expression is to state theirviews in public.

Proper application of our precedentsthus leads to the conclusion that the FirstAmendment does not prohibit managerialdiscipline based on an employee’s expres-sions made pursuant to official responsibil-ities. Because Ceballos’ memo falls intothis category, his allegation of unconstitu-tional retaliation must fail.

[13] Two final points warrant mention-ing. First, as indicated above, the partiesin this case do not dispute that Ceballoswrote his disposition memo pursuant to hisemployment duties. We thus have no oc-casion to articulate a comprehensiveframework for defining the scope of anemployee’s duties in cases where there isroom for serious debate. We reject, how-ever, the suggestion that employers canrestrict employees’ rights by creating ex-cessively broad job descriptions. See post,at 1965, n. 2 (SOUTER, J., dissenting).The proper inquiry is a practical one.


Formal job descriptions often bear littleresemblance to the duties an employeeactually is S 425expected to perform, and thelisting of a given task in an employee’swritten job description is neither neces-sary nor sufficient to demonstrate thatconducting the task is within the scope ofthe employee’s professional duties forFirst Amendment purposes.

Second, Justice SOUTER suggests to-day’s decision may have important ramifi-cations for academic freedom, at least as aconstitutional value. See post, at 1969 –1970. There is some argument that ex-pression related to academic scholarship orclassroom instruction implicates additionalconstitutional interests that are not fullyaccounted for by this Court’s customaryemployee-speech jurisprudence. We neednot, and for that reason do not, decidewhether the analysis we conduct todaywould apply in the same manner to a caseinvolving speech related to scholarship orteaching.

IV

Exposing governmental inefficiency andmisconduct is a matter of considerable sig-nificance. As the Court noted in Connick,public employers should, ‘‘as a matter ofgood judgment,’’ be ‘‘receptive to construc-tive criticism offered by their employees.’’461 U.S., at 149, 103 S.Ct. 1684. Thedictates of sound judgment are reinforcedby the powerful network of legislative en-actments—such as whistle-blower protec-tion laws and labor codes—available tothose 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 im-plicate additional safeguards in the form

of, for example, rules of conduct and con-stitutional obligations apart from the FirstAmendment. See, e.g., Cal. Rule Prof.Conduct 5–110 (2005) (‘‘A member in gov-ernment service shall not institute or causeto be instituted criminal charges when themember knows or should know that thecharges are not supported by probablecause’’); Brady v. Maryland, 373 U.S. 83,83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).These imperatives, as well as obligationsarising from any S 426other applicable consti-tutional provisions and mandates of thecriminal and civil laws, protect employeesand provide checks on supervisors whowould order unlawful or otherwise inap-propriate actions.

We reject, however, the notion that theFirst Amendment shields from disciplinethe expressions employees make pursuantto their professional duties. Our prece-dents do not support the existence of aconstitutional cause of action behind everystatement a public employee makes in thecourse of doing his or her job.

The judgment of the Court of Appeals isreversed, and the case is remanded forproceedings consistent with this opinion.

It is so ordered.

Justice STEVENS, dissenting.

The proper answer to the question‘‘whether the First Amendment protects agovernment employee from disciplinebased on speech made pursuant to theemployee’s official duties,’’ ante, at 1955, is‘‘Sometimes,’’ not ‘‘Never.’’ Of course asupervisor may take corrective actionwhen such speech is ‘‘inflammatory or mis-guided,’’ ante, at 1960 – 1961. But what ifit is just unwelcome speech because itreveals facts that the supervisor wouldrather not have anyone else discover? *

* See, e.g., Branton v. Dallas, 272 F.3d 730(C.A.5 2001) (police internal investigator de-

moted by police chief after bringing the falsetestimony of a fellow officer to the attention of


547 U.S. 428

S 427As Justice SOUTER explains, publicemployees are still citizens while they arein the office. The notion that there is acategorical difference between speaking asa citizen and speaking in the course ofone’s employment is quite wrong. Over aquarter of a century has passed since then-Justice Rehnquist, writing for a unanimousCourt, rejected ‘‘the conclusion that a pub-lic employee forfeits his protection againstgovernmental abridgment of freedom ofspeech if he decides to express his viewsprivately rather than publicly.’’ Givhan v.Western Line Consol. School Dist., 439U.S. 410, 414, 99 S.Ct. 693, 58 L.Ed.2d 619(1979). We had no difficulty recognizingthat the First Amendment applied whenBessie Givhan, an English teacher, raisedconcerns about the school’s racist employ-ment practices to the principal. See id., at413–416, 99 S.Ct. 693. Our silence as towhether or not her speech was made pur-suant to her job duties demonstrates thatthe point was immaterial. That is equallytrue today, for it is senseless to let consti-tutional protection for exactly the samewords hinge on whether they fall within ajob description. Moreover, it seems per-verse to fashion a new rule that providesemployees with an incentive to voice theirconcerns publicly before talking frankly totheir superiors.

While today’s novel conclusion to thecontrary may not be ‘‘inflammatory,’’ forthe reasons stated in Justice SOUTER’sdissenting opinion it is surely ‘‘misguided.’’

Justice SOUTER, with whom JusticeSTEVENS and Justice GINSBURG join,dissenting.

The Court holds that ‘‘when public em-ployees make statements pursuant to theirofficial duties, the employees are notspeaking as citizens for First Amendmentpurposes, and the Constitution does notinsulate their communications from em-ployer discipline.’’ Ante, at 1960. I re-spectfully dissent. S 428I agree with the ma-jority that a government employer hassubstantial interests in effectuating its cho-sen policy and objectives, and in demand-ing competence, honesty, and judgmentfrom employees who speak for it in doingtheir work. But I would hold that privateand public interests in addressing officialwrongdoing and threats to health and safe-ty can outweigh the government’s stake inthe efficient implementation of policy, andwhen they do public employees who speakon these matters in the course of theirduties should be eligible to claim FirstAmendment protection.

I

Open speech by a private citizen on amatter of public importance lies at theheart of expression subject to protectionby the First Amendment. See, e.g.,Schenck v. Pro–Choice Network of West-ern N. Y., 519 U.S. 357, 377, 117 S.Ct. 855,137 L.Ed.2d 1 (1997). At the other ex-

a city official); Miller v. Jones, 444 F.3d 929,936 (C.A.7 2006) (police officer demoted afteropposing the police chief’s attempt to ‘‘us[e]his official position to coerce a financiallyindependent organization into a potentiallyruinous merger’’); Delgado v. Jones, 282 F.3d511 (C.A.7 2002) (police officer sanctioned forreporting criminal activity that implicated alocal political figure who was a good friend ofthe police chief); Herts v. Smith, 345 F.3d 581(C.A.8 2003) (school district official’s contractwas not renewed after she gave frank testimo-

ny about the district’s desegregation efforts);Kincade v. Blue Springs, 64 F.3d 389 (C.A.81995) (engineer fired after reporting to hissupervisors that contractors were failing tocomplete dam-related projects and that theresulting dam might be structurally unstable);Fox v. District of Columbia, 83 F.3d 1491,1494 (C.A.D.C.1996) (D.C. Lottery Board se-curity officer fired after informing the policeabout a theft made possible by ‘‘rather drasticmanagerial ineptitude’’).


treme, a statement by a government em-ployee complaining about nothing beyondtreatment under personnel rules raises nogreater claim to constitutional protectionagainst retaliatory response than the re-marks of a private employee. See Con-nick v. Myers, 461 U.S. 138, 147, 103 S.Ct.1684, 75 L.Ed.2d 708 (1983). In betweenthese points lies a public employee’sspeech unwelcome to the government buton a significant public issue. Such an em-ployee speaking as a citizen, that is, with acitizen’s interest, is protected from reprisalunless the statements are too damaging tothe government’s capacity to conduct pub-lic business to be justified by any individu-al or public benefit thought to flow fromthe statements. Pickering v. Board of Ed.of Township High School Dist. 205, WillCty., 391 U.S. 563, 568, 88 S.Ct. 1731, 20L.Ed.2d 811 (1968). Entitlement to pro-tection is thus not absolute.

This significant, albeit qualified, protec-tion of public employees who irritate thegovernment is understood to flow from theFirst Amendment, in part, because a gov-ernment paycheck does nothing to elimi-nate the value to an individual of speakingon public matters, and there is no goodS 429reason for categorically discounting aspeaker’s interest in commenting on amatter of public concern just because thegovernment employs him. Still, the FirstAmendment safeguard rests on somethingmore, being the value to the public ofreceiving the opinions and information thata public employee may disclose. ‘‘Govern-ment employees are often in the best posi-tion to know what ails the agencies forwhich they work.’’ Waters v. Churchill,511 U.S. 661, 674, 114 S.Ct. 1878, 128L.Ed.2d 686 (1994).

The reason that protection of employeespeech is qualified is that it can distractco-workers and supervisors from theirtasks at hand and thwart the implementa-

tion of legitimate policy, the risks of whichgrow greater the closer the employee’sspeech gets to commenting on his ownworkplace and responsibilities. It is onething for an office clerk to say there iswaste in government and quite another tocharge that his own department pays full-time salaries to part-time workers. Evenso, we have regarded eligibility for protec-tion by Pickering balancing as the properapproach when an employee speaks criti-cally about the administration of his owngovernment employer. In Givhan v.Western Line Consol. School Dist., 439U.S. 410, 99 S.Ct. 693, 58 L.Ed.2d 619(1979), we followed Pickering when ateacher was fired for complaining to asuperior about the racial composition ofthe school’s administrative, cafeteria, andlibrary staffs, 439 U.S., at 413–414, 99S.Ct. 693, and the same point was clear inMadison Joint School Dist. No. 8 v. Wis-consin Employment Relations Comm’n,429 U.S. 167, 97 S.Ct. 421, 50 L.Ed.2d 376(1976). That case was decided, in part,with reference to the Pickering frame-work, and the Court there held that aschoolteacher speaking out on behalf ofhimself and others at a public school boardmeeting could not be penalized for criticiz-ing pending collective-bargaining negotia-tions affecting professional employment.Madison noted that the teacher ‘‘ad-dressed the school board not merely asone of its employees but also as a con-cerned citizen, seeking to express his viewson an important decision of his govern-ment.’’ 429 S 430U.S., at 174–175, 97 S.Ct.421. In each case, the Court realized thata public employee can wear a citizen’s hatwhen speaking on subjects closely tied tothe employee’s own job, and Givhanstands for the same conclusion even whenthe speech is not addressed to the publicat large. Cf. Pegram v. Herdrich, 530U.S. 211, 225, 120 S.Ct. 2143, 147 L.Ed.2d164 (2000) (recognizing that, factually, a


547 U.S. 431

trustee under the Employee RetirementIncome Security Act of 1974 can both actas ERISA fiduciary and act on behalf ofthe employer).

The difference between a case likeGivhan and this one is that the subject ofCeballos’s speech fell within the scope ofhis job responsibilities, whereas choosingpersonnel was not what the teacher washired to do. The effect of the majority’sconstitutional line between these twocases, then, is that a Givhan schoolteacheris protected when complaining to the prin-cipal about hiring policy, but a school per-sonnel officer would not be if he protestedthat the principal disapproved of hiringminority job applicants. This is an oddplace to draw a distinction,1 and while nec-essary judicial line-drawing sometimeslooks arbitrary, any distinction obliges acourt to justify its choice. Here, there isno adequate justification for the majority’sline categorically denying Pickering pro-tection to any speech uttered ‘‘pursuant toTTT official duties,’’ ante, at 1960.

As all agree, the qualified speech protec-tion embodied in Pickering balancing re-solves the tension between individual andpublic interests in the speech, on the one

hand, and the government’s interest in op-erating efficiently without distraction orembarrassment by talkative or headline-grabbing employees. The need for a bal-ance hardly disappears when an employeespeaks on matters his job requires him toaddress; rather, it seems obvious that theindividual and public S 431value of suchspeech is no less, and may well be greater,when the employee speaks pursuant to hisduties in addressing a subject he knowsintimately for the very reason that it fallswithin his duties.2

As for the importance of such speech tothe individual, it stands to reason that acitizen may well place a very high value ona right to speak on the public issues hedecides to make the subject of his workday after day. Would anyone doubt that aschool principal evaluating the perform-ance of teachers for promotion or pay ad-justment retains a citizen’s interest in ad-dressing the quality of teaching in theschools? (Still, the majority indicates hecould be fired without First Amendmentrecourse for fair but unfavorable commentwhen the teacher under review is the su-perintendent’s daughter.) Would anyonedeny that a prosecutor like Richard Cebal-los may claim the interest of any citizen in

1. It seems stranger still in light of the majori-ty’s concession of some First Amendment pro-tection when a public employee repeats state-ments made pursuant to his duties but in aseparate, public forum or in a letter to anewspaper. Ante, at 1961.

2. I do not say the value of speech ‘‘pursuantto TTT duties’’ will always be greater, becauseI am pessimistic enough to expect that oneresponse to the Court’s holding will be movesby government employers to expand statedjob descriptions to include more officialduties and so exclude even some currentlyprotectable speech from First Amendmentpurview. Now that the government can free-ly penalize the school personnel officer forcriticizing the principal because speech onthe subject falls within the personnel officer’sjob responsibilities, the government may well

try to limit the English teacher’s options bythe simple expedient of defining teachers’ jobresponsibilities expansively, investing themwith a general obligation to ensure soundadministration of the school. Hence today’srule presents the regrettable prospect thatprotection under Pickering v. Board of Ed. ofTownship High School Dist. 205, Will Cty.,391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811(1968), may be diminished by expansive state-ments of employment duties.

The majority’s response, that the enquiry todetermine duties is a ‘‘practical one,’’ ante, at1961, does not alleviate this concern. It setsout a standard that will not discourage gov-ernment employers from setting duties expan-sively, but will engender litigation to decidewhich stated duties were actual and whichwere merely formal.


speaking out against a rogue law enforce-ment officer, simply because his job re-quires him to express a judgment aboutthe officer’s performance? (But the ma-jority says the First Amendment givesCeballos no protection, even if his judg-ment in this case was sound and appropri-ately expressed.)

Indeed, the very idea of categoricallyseparating the citizen’s interest from theemployee’s interest ignores the fact thatthe ranks of public service include thosewho share the poet’s ‘‘object TTT to unite[m]y avocation and my vocation’’;3 thesecitizen servants are the ones whose civicinterest rises highest when they speakpursuant to their duties, and these areexactly the ones government employersmost want to attract.4 There is no ques-tion that public employees speaking onmatters they are obliged to address wouldgenerally S 433place a high value on a rightto speak, as any responsible citizen would.

Nor is there any reason to raise thecounterintuitive question whether the pub-lic interest in hearing informed employees

evaporates when they speak as requiredon some subject at the core of their jobs.Last Term, we recalled the public valuethat the Pickering Court perceived in thespeech of public employees as a class:‘‘Underlying the decision in Pickering isthe recognition that public employees areoften the members of the community whoare likely to have informed opinions as tothe operations of their public employers,operations which are of substantial con-cern to the public. Were they not able tospeak on these matters, the communitywould be deprived of informed opinions onimportant public issues. The interest atstake is as much the public’s interest inreceiving informed opinion as it is the em-ployee’s own right to disseminate it.’’ SanDiego v. Roe, 543 U.S. 77, 82, 125 S.Ct.521, 160 L.Ed.2d 410 (2004) (per curiam)(citation omitted). This is not a whit lesstrue when an employee’s job duties requirehim to speak about such things: when, forexample, a public auditor speaks on hisdiscovery of embezzlement of public funds,when a building inspector makes an obliga-

3. R. Frost, Two Tramps in Mud Time, Collect-ed Poems, Prose, & Plays 251, 252 (R. Poirier& M. Richardson eds.1995).

4. Not to put too fine a point on it, the HumanResources Division of the Los Angeles CountyDistrict Attorney’s Office, Ceballos’s employ-er, is telling anyone who will listen that itswork ‘‘provides the personal satisfaction andfulfillment that comes with knowing you arecontributing essential services to the citizensof Los Angeles County.’’ Career Opportuni-ties, http://da.co.la.ca.us/hr/default.htm (allInternet materials as visited May 25, 2006,and available in Clerk of Court’s case file).

The United States expresses the same inter-est in identifying the individual ideals of acitizen with its employees’ obligations to theGovernment. See Brief as Amicus Curiae 25(stating that public employees are motivatedto perform their duties ‘‘to serve the public’’).Right now, for example, the U.S. Food andDrug Administration is appealing to physi-cians, scientists, and statisticians to work inthe Center for Drug Evaluation and Research,

with the message that they ‘‘can give back to[their] community, state, and country by mak-ing a difference in the lives of Americanseverywhere.’’ Career Opportunities atCDER: You Can Make a Difference, http://www.fda.gov/cder/ career/default.htm. In-deed, the Congress of the United States, byconcurrent resolution, has previously express-ly endorsed respect for a citizen’s obligationsas the prime responsibility of Governmentemployees: ‘‘Any person in Government Ser-vice should: TTT [p]ut loyalty to the highestmoral principles and to country above loyaltyto persons, party, or Government depart-ment,’’ and shall ‘‘[e]xpose corruption wher-ever discovered,’’ Code of Ethics for Govern-ment Service, H. Con. Res. 175, 85th Cong.,2d Sess., 72 Stat. B12. Display of this Code inGovernment buildings was once required bylaw, 94 Stat. 855; this obligation has beenrepealed, Office of Government Ethics Au-thorization Act of 1996, Pub.L. 104–179, § 4,110 Stat. 1566.


547 U.S. 435

tory report of an attempt to bribe him, orwhen a law enforcement officer expresslybalks at a superior’s order to violate con-stitutional rights he is sworn to protect.(The majority, however, places all thesespeakers beyond the reach of FirstAmendment protection against retaliation.)

Nothing, then, accountable on the indi-vidual and public side of the Pickeringbalance changes when an employee speaks‘‘pursuant’’ to public duties. On the side ofthe government employer, however, some-thing is different, and to this extent, Iagree with the majority of the Court. Themajority is rightly concerned that the em-ployee who speaks out on matters subjectto comment in doing his own work has thegreater leverage to create office uproarsand fracture the government’s authority toset policy to be carried out S 434coherentlythrough the ranks. ‘‘Official communica-tions have official consequences, creating aneed for substantive consistency and clari-ty. Supervisors must ensure that theiremployees’ official communications are ac-curate, demonstrate sound judgment, andpromote the employer’s mission.’’ Ante, at1960. Up to a point, then, the majoritymakes good points: government needs civ-ility in the workplace, consistency in poli-cy, and honesty and competence in publicservice.

But why do the majority’s concerns,which we all share, require categorical ex-clusion of First Amendment protectionagainst any official retaliation for thingssaid on the job? Is it not possible torespect the unchallenged individual andpublic interests in the speech through aPickering balance without drawing thestrange line I mentioned before, supra, at1965? This is, to be sure, a matter ofjudgment, but the judgment has to accountfor the undoubted value of speech to those,

and by those, whose specific public jobresponsibilities bring them face to facewith wrongdoing and incompetence in gov-ernment, who refuse to avert their eyesand shut their mouths. And it has toaccount for the need actually to disruptgovernment if its officials are corrupt ordangerously incompetent. See n. 4, supra.It is thus no adequate justification for thesuppression of potentially valuable infor-mation simply to recognize that the gov-ernment has a huge interest in managingits employees and preventing the occasion-ally irresponsible one from turning his jobinto a bully pulpit. Even there, the lessonof Pickering (and the object of most con-stitutional adjudication) is still to the point:when constitutionally significant interestsclash, resist the demand for winner-take-all; try to make adjustments that serve allof the values at stake.

Two reasons in particular make methink an adjustment using the basic Pick-ering balancing scheme is perfectly feasi-ble here. First, the extent of the govern-ment’s legitimate authority over subjectsof speech required by a public job S 435canbe recognized in advance by setting ineffect a minimum heft for comments withany claim to outweigh it. Thus, the risksto the government are great enough for usto hold from the outset that an employeecommenting on subjects in the course ofduties should not prevail on balance unlesshe speaks on a matter of unusual impor-tance and satisfies high standards of re-sponsibility in the way he does it. Theexamples I have already given indicate theeligible subject matter, and it is fair to saythat only comment on official dishonesty,deliberately unconstitutional action, otherserious wrongdoing, or threats to healthand safety can weigh out in an employee’sfavor. If promulgation of this standardshould fail to discourage meritless actionspremised on 42 U.S.C. § 1983 (or Bivens


v. Six Unknown Fed. Narcotics Agents,403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619(1971)) before they get filed, the standarditself would sift them out at the summary-judgment stage.5

My second reason for adapting Picker-ing to the circumstances at hand is theexperience in Circuits that have recognizedclaims like Ceballos’s here. First Amend-ment protection less circumscribed thanwhat I would recognize has been availablein the Ninth Circuit for over 17 years, andneither there nor in other Circuits thataccept claims like this one has there beena debilitating flood of litigation. There hasindeed been some: as represented by Ce-ballos’s lawyer at oral argument, each yearover the last five years, approximately 70cases in the different Courts of Appealsand approximately 100 in the various Dis-trict Courts. Tr. of Oral Arg. 58–59. Buteven these figures reflect a readiness tolitigate that might well have been cooledby my view about S 436the importance re-quired before Pickering treatment is inorder.

For that matter, the majority’s positioncomes with no guarantee against fact-bound litigation over whether a public em-ployee’s statements were made ‘‘pursuantto TTT official duties,’’ ante, at 1960. Infact, the majority invites such litigation bydescribing the enquiry as a ‘‘practicalone,’’ ante, at 1961, apparently based onthe totality of employment circumstances.6

See n. 2, supra. Are prosecutors’ discre-tionary statements about cases addressedto the press on the courthouse steps made‘‘pursuant to their official duties’’? Aregovernment nuclear scientists’ complaints

to their supervisors about a colleague’simproper handling of radioactive materialsmade ‘‘pursuant’’ to duties?

II

The majority seeks support in two linesof argument extraneous to Pickering doc-trine. The one turns on a fallacious read-ing of cases on government speech, theother on a mistaken assessment of protec-tion available under whistle-blower stat-utes.

A

The majority accepts the fallacy pro-pounded by the county petitioners and theFederal Government as amicus that anystatement made within the scope of publicemployment is (or should be treated as)the government’s own speech, see ante, at1960, and should thus be differentiated asa matter of law from the personal state-ments the First Amendment protects, seeBroadrick v. Oklahoma, 413 U.S. 601, 610,93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). Themajority invokes the interpretation set outin Rosenberger v. Rector and Visitors ofUniv. of Va., 515 U.S. 819, 115 S.Ct. 2510,132 L.Ed.2d 700 (1995), of Rust v. Sulli-van, 500 U.S. 173, 111 S.Ct. 1759, 114L.Ed.2d 233 (1991), which S 437held therewas no infringement of the speech rightsof Title X funds recipients and their staffswhen the Government forbade any on-the-job counseling in favor of abortion as amethod of family planning, id., at 192–200,111 S.Ct. 1759. We have read Rust tomean that ‘‘when the government appro-

5. As I also said, a public employer is entitled(and obliged) to impose high standards ofhonesty, accuracy, and judgment on employ-ees who speak in doing their work. Thesecriteria are not, however, likely to discouragemeritless litigation or provide a handle forsummary judgment. The employee who hasspoken out, for example, is unlikely to blame

himself for prior bad judgment before he suesfor retaliation.

6. According to the majority’s logic, the litiga-tion it encourages would have the unfortunateresult of ‘‘demand[ing] permanent judicial in-tervention in the conduct of governmentaloperations,’’ ante, at 1961.


547 U.S. 438

priates public funds to promote a particu-lar policy of its own it is entitled to saywhat it wishes.’’ Rosenberger, supra, at833, 115 S.Ct. 2510.

The key to understanding the differencebetween this case and Rust lies in theterms of the respective employees’ jobsand, in particular, the extent to whichthose terms require espousal of a substan-tive position prescribed by the governmentin advance. Some public employees arehired to ‘‘promote a particular policy’’ bybroadcasting a particular message set bythe government, but not everyone workingfor the government, after all, is hired tospeak from a government manifesto. SeeLegal Services Corporation v. Velazquez,531 U.S. 533, 542, 121 S.Ct. 1043, 149L.Ed.2d 63 (2001). There is no claim orindication that Ceballos was hired to per-form such a speaking assignment. He waspaid to enforce the law by constitutionalaction: to exercise the county govern-ment’s prosecutorial power by acting hon-estly, competently, and constitutionally.The only sense in which his position appar-ently required him to hew to a substantivemessage was at the relatively abstractpoint of favoring respect for law and itsevenhanded enforcement, subjects that arenot at the level of controversy in this caseand were not in Rust. Unlike the doctorsin Rust, Ceballos was not paid to advanceone specific policy among those legitimate-ly available, defined by a specific messageor limited by a particular message forbid-den. The county government’s interest inhis speech cannot therefore be equatedwith the terms of a specific, prescribed, orforbidden substantive position comparableto the Federal Government’s interest inRust, and Rust is no authority for thenotion that government may exercise ple-nary control over every comment made bya public employee in doing his job.

S 438It is not, of course, that the districtattorney lacked interest of a high order inwhat Ceballos might say. If his speechundercut effective, lawful prosecution,there would have been every reason torein him in or fire him; a statement thatcreated needless tension among law en-forcement agencies would be a fair subjectof concern, and the same would be true ofinaccurate statements or false ones madein the course of doing his work. But theseinterests on the government’s part are en-tirely distinct from any claim that Cebal-los’s speech was government speech with apreset or proscribed content as exempli-fied in Rust. Nor did the county petition-ers here even make such a claim in theiranswer to Ceballos’s complaint, see n. 13,infra.

The fallacy of the majority’s reliance onRosenberger’s understanding of Rust doc-trine, moreover, portends a bloated notionof controllable government speech goingwell beyond the circumstances of this case.Consider the breadth of the new formula-tion:

‘‘Restricting speech that owes its exis-tence to a public employee’s professionalresponsibilities does not infringe any lib-erties the employee might have enjoyedas a private citizen. It simply reflectsthe exercise of employer control overwhat the employer itself has commis-sioned or created.’’ Ante, at 1960.

This ostensible domain beyond the pale ofthe First Amendment is spacious enoughto include even the teaching of a publicuniversity professor, and I have to hopethat today’s majority does not mean toimperil First Amendment protection of ac-ademic freedom in public colleges and uni-versities, whose teachers necessarily speakand write ‘‘pursuant to TTT official duties.’’See Grutter v. Bollinger, 539 U.S. 306, 329,123 S.Ct. 2325, 156 L.Ed.2d 304 (2003)(‘‘We have long recognized that, given the


important purpose of public education andthe expansive freedoms of speech andthought associated with the university en-vironment, universities occupy a specialniche in our constitutional S 439tradition’’);Keyishian v. Board of Regents of Univ. ofState of N. Y., 385 U.S. 589, 603, 87 S.Ct.675, 17 L.Ed.2d 629 (1967) (‘‘Our Nation isdeeply committed to safeguarding aca-demic freedom, which is of transcendentvalue to all of us and not merely to theteachers concerned. That freedom istherefore a special concern of the FirstAmendment, which does not tolerate lawsthat cast a pall of orthodoxy over theclassroom. ‘The vigilant protection of con-stitutional freedoms is nowhere more vitalthan in the community of Americanschools’ ’’ (quoting Shelton v. Tucker, 364U.S. 479, 487, 81 S.Ct. 247, 5 L.Ed.2d 231(1960))); Sweezy v. New Hampshire, 354U.S. 234, 250, 77 S.Ct. 1203, 1 L.Ed.2d1311 (1957) (a governmental enquiry intothe contents of a scholar’s lectures at astate university ‘‘unquestionably was aninvasion of [his] liberties in the areas ofacademic freedom and political expres-sion—areas in which government shouldbe extremely reticent to tread’’).

B

The majority’s second argument for itsdisputed limitation of Pickering doctrine isthat the First Amendment has little or no

work to do here owing to an assertedlycomprehensive complement of state andnational statutes protecting governmentwhistle-blowers from vindictive bosses.See ante, at 1962. But even if I close myeyes to the tenet that ‘‘ ‘[t]he applicabilityof a provision of the Constitution has neverdepended on the vagaries of state or feder-al law,’ ’’ Board of Comm’rs, WabaunseeCty. v. Umbehr, 518 U.S. 668, 680, 116S.Ct. 2342, 135 L.Ed.2d 843 (1996), themajority’s counsel to rest easy fails on itsown terms.7

S 440To begin with, speech addressing offi-cial wrongdoing may well fall outside pro-tected whistle-blowing, defined in the clas-sic sense of exposing an official’s fault to athird party or to the public; the teacher inGivhan, for example, who raised the issueof unconstitutional hiring bias, would nothave qualified as that sort of whistle-blow-er, for she was fired after a private conver-sation with the school principal. In anyevent, the combined variants of statutorywhistle-blower definitions and protectionsadd up to a patchwork, not a showing thatworries may be remitted to legislatures forrelief. See D. Westman & N. Modesitt,Whistleblowing: Law of Retaliatory Dis-charge 67–75, 281–307 (2d ed.2004). Somestate statutes protect all governmentworkers, including the employees of mu-nicipalities and other subdivisions; 8 othersstop at state employees.9 Some limit pro-

7. Even though this Court has recognized that42 U.S.C. § 1983 ‘‘does not authorize a suitfor every alleged violation of federal law,’’Livadas v. Bradshaw, 512 U.S. 107, 132, 114S.Ct. 2068, 129 L.Ed.2d 93 (1994), the rule isthat ‘‘ § 1983 remains a generally and pre-sumptively available remedy for claimed vio-lations of federal law,’’ id., at 133, 114 S.Ct.2068. Individual enforcement under § 1983is rendered unavailable for alleged violationsof federal law when the underlying statutoryprovision is part of a federal statutory schemeclearly incompatible with individual enforce-ment under § 1983. See Rancho Palos

Verdes v. Abrams, 544 U.S. 113, 119–120, 125S.Ct. 1453, 161 L.Ed.2d 316 (2005).

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, 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 (2005).

9. Ala.Code § 36–26A–1 et seq. (2001); Colo.Rev.Stat. § 24–50.5–101 et seq. (2004); Iowa


547 U.S. 442

tection to employees who tell their bossesbefore they speak out; 10 others forbidbosses from imposing any requirement towarn.11 As for the federal WhistleblowerProtection Act of 1989, 5 S 441U.S.C. § 1213et seq. (2000 ed. and Supp. III), currentcase law requires an employee complainingof retaliation to show that ‘‘ ‘a disinterest-ed observer with knowledge of the essen-tial facts known to and readily ascertain-able by the employee [could] reasonablyconclude that the actions of the govern-ment evidence gross mismanagement,’ ’’White v. Department of Air Fornce, 391F.3d 1377, 1381 (C.A.Fed.2004) (quotingLachance v. White, 174 F.3d 1378, 1381(C.A.Fed.1999), cert. denied, 528 U.S.1153, 120 S.Ct. 1157, 145 L.Ed.2d 1069(2000)). And federal employees have beenheld to have no protection for disclosuresmade to immediate supervisors, see Willisv. Department of Agriculture, 141 F.3d1139, 1143 (C.A.Fed.1998); Horton v. De-partment of Navy, 66 F.3d 279, 282(C.A.Fed.1995), cert. denied, 516 U.S.1176, 116 S.Ct. 1271, 134 L.Ed.2d 218(1996), or for statements of facts publiclyknown already, see Francisco v. Office ofPersonnel Management, 295 F.3d 1310,1314 (C.A.Fed.2002). Most significantly,federal employees have been held to beunprotected for statements made in con-nection with normal employment duties,Huffman v. Office of Personnel Manage-ment, 263 F.3d 1341, 1352 (C.A.Fed.2001),

the very speech that the majority says willbe covered by ‘‘the powerful network oflegislative enactments TTT available tothose who seek to expose wrongdoing,’’ante, at 1962.12 My point is not to dispar-age particular statutes or speak here tothe merits of interpretations by other fed-eral courts, but merely to show the currentunderstanding of statutory protection: in-dividuals doing the same sorts of govern-mental jobs and saying the same sorts ofthings addressed to civic concerns will getdifferent protection depending on the local,state, or federal jurisdictions that hap-pened to employ them.

IIIThe Court remands because the Court

of Appeals considered only the dispositionmemorandum and because CeballosS 442charges retaliation for some speech ap-parently outside the ambit of utterances‘‘pursuant to their official duties.’’ Whenthe Court of Appeals takes up this caseonce again, it should consider some of thefollowing facts that escape emphasis in themajority opinion owing to its focus.13 Ce-ballos says he sought his position out of apersonal commitment to perform civicwork. After showing his superior, peti-tioner Frank Sundstedt, the dispositionmemorandum at issue in this case, Cebal-los complied with Sundstedt’s direction totone down some accusatory rhetoric out of

Code § 70A.28 et seq. (2005); 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); Okla. Stat., Tit.74, § 840–2.5 et seq. (West Supp.2005);Wash. Rev.Code § 42.40.010 (2004); 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, ch. 149, § 185(c)(1) (West2004); N.H.Rev.Stat. Ann. § 275–E:2(II)(1999); N.J. Stat. Ann. § 34:19–4 (West2000); 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) (2003Cum.Supp.); Ky.Rev.Stat. Ann. § 61.102(1)(West 2005); Mo.Rev.Stat. § 105.055(2)(2004 Cum.Supp.); Okla. Stat., Tit. 74,§ 840–2.5(B)(4) (West 2005 Supp.); Ore.Rev.Stat. § 659A.203(1)(c) (2003).

12. See n. 4, supra.

13. This case comes to the Court on the mo-tions of petitioners for summary judgment,and as such, ‘‘[t]he evidence of [Ceballos] is tobe believed, and all justifiable inferences areto be drawn in his favor.’’ Anderson v. LibertyLobby, Inc., 477 U.S. 242, 255, 106 S.Ct.2505, 91 L.Ed.2d 202 (1986).


concern that the memorandum would beunnecessarily incendiary when shown tothe Sheriff’s Department. After meetingwith members of that department, Cebal-los told his immediate supervisor, petition-er Carol Najera, that he thought Brady v.Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10L.Ed.2d 215 (1963), obliged him to give thedefense his internal memorandum as ex-culpatory evidence. He says that Najeraresponded by ordering him to write a newmemorandum containing nothing but thedeputy sheriff’s statements, but that hebalked at that. Instead, he proposed toturn over the existing memorandum withhis own conclusions redacted as workproduct, and this is what he did. Theissue over revealing his conclusions aroseagain in preparing for the suppressionhearing. Ceballos maintains that Sundst-edt ordered Najera, representing the pros-ecution, to give the trial judge a full pic-ture of the circumstances, but that Najeratold Ceballos he would suffer retaliation ifhe testified that the affidavit containedintentional fabrications. In any event, Ce-ballos’s testimony generally stopped shortof his own conclusions. After the hearing,the trial judge denied the motion to sup-press, explaining that he found grounds

independent of the challenged materialsufficient to show probable cause for thewarrant.

S 443Ceballos says that over the next sixmonths his supervisors retaliated againsthim 14 not only for his written reports, seeante, at 1956, but also for his spoken state-ments to them and his hearing testimonyin the pending criminal case. While aninternal grievance filed by Ceballos chal-lenging these actions was pending, Cebal-los spoke at a meeting of the Mexican–American Bar Association about miscon-duct of the Sheriff’s Department in thecriminal case, the lack of any policy at theDistrict Attorney’s Office for handling alle-gations of police misconduct, and the retal-iatory acts he ascribed to his supervisors.Two days later, the office dismissed Cebal-los’s grievance, a result he attributes inpart to his bar association speech.

Ceballos’s action against petitioners un-der 42 U.S.C. § 1983 claims that the in-dividuals retaliated against him for exer-cising his First Amendment rights insubmitting the memorandum, discussingthe matter with Najera and Sundstedt,testifying truthfully at the hearing, andspeaking at the bar meeting.15 As I

14. Sundstedt demoted Ceballos to a trial dep-uty; his only murder case was reassigned to ajunior colleague with no experience in homi-cide matters, and no new murder cases wereassigned to him; then-District Attorney GilGarcetti, relying in part on Sundstedt’s rec-ommendation, denied Ceballos a promotion;finally, Sundstedt and Najera transferred himto the office’s El Monte Branch, requiringlonger commuting. Before transferring Ce-ballos, Najera offered him a choice betweentransferring and remaining at the PomonaBranch prosecuting misdemeanors instead offelonies. When Ceballos refused to choose,Najera transferred him.

15. The county petitioners’ position on theseclaims is difficult to follow or, at least, puz-zling. In their motion for summary judg-ment, they denied that any of their actionswas responsive to Ceballos’s criticism of the

sheriff’s affidavit. E.g., App. 159–160, 170–172 (maintaining that Ceballos was trans-ferred to the El Monte Branch because of thedecreased workload in the Pomona Branchand because he was next in a rotation to gothere to serve as a ‘‘filing deputy’’); id., at160, 172–173 (contending that Ceballos’smurder case was reassigned to a junior col-league to give that attorney murder trial expe-rience before he was transferred to the Juve-nile Division of the District Attorney’s Office);id., at 161–162, 173–174 (arguing that Cebal-los was denied a promotion by Garcetti de-spite Sundstedt’s stellar review of Ceballos,when Garcetti was unaware of the matter inPeople v. Cuskey, the criminal case for whichCeballos wrote the pertinent disposition mem-orandum). Their reply to Ceballos’s opposi-tion to summary judgment however, showsthat petitioners argued for a Pickering assess-ment (for want of a holding that Ceballos was


547 U.S. 445

mentioned, the Court of Appeals S 444sawno need to address the protection afford-ed to Ceballos’s statements other thanthe disposition memorandum, which itthought was protected under the Picker-ing test. Upon remand, it will be opento the Court of Appeals to consider theapplication of Pickering to any retaliationshown for other statements; not all ofthose statements would have been madepursuant to official duties in any obvioussense, and the claim relating to truthfultestimony in court must surely be ana-lyzed independently to protect the integ-rity of the judicial process.

Justice BREYER, dissenting.

This case asks whether the FirstAmendment protects public employeeswhen they engage in speech that both (1)involves matters of public concern and (2)takes place in the ordinary course of per-forming the duties of a government job. Iwrite separately to explain why I cannotfully accept either the Court’s or JusticeSOUTER’s answer to the question pre-sented.

I

I begin with what I believe is commonground:

(1) Because virtually all human inter-action takes place through speech, theFirst Amendment cannot offer all speechthe same degree of protection. Rather,judges must apply different protective pre-sumptions in different contexts, scrutiniz-ing government’s speech-related restric-tions differently S 445depending upon thegeneral category of activity. Compare,e.g., Burson v. Freeman, 504 U.S. 191, 112S.Ct. 1846, 119 L.Ed.2d 5 (1992) (pluralityopinion) (political speech), with Central

Hudson Gas & Elec. Corp. v. Public Serv.Comm’n of N. Y., 447 U.S. 557, 100 S.Ct.2343, 65 L.Ed.2d 341 (1980) (commercialspeech), and Rust v. Sullivan, 500 U.S.173, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991)(government speech).

(2) Where the speech of governmentemployees is at issue, the First Amend-ment offers protection only where the offerof protection itself will not unduly interferewith legitimate governmental interests,such as the interest in efficient administra-tion. That is because the government, likeany employer, must have adequate author-ity to direct the activities of its employees.That is also because efficient administra-tion of legislatively authorized programsreflects the constitutional need effectivelyto implement the public’s democraticallydetermined will.

(3) Consequently, where a governmentemployee speaks ‘‘as an employee uponmatters only of personal interest,’’ theFirst Amendment does not offer protec-tion. Connick v. Myers, 461 U.S. 138, 147,103 S.Ct. 1684, 75 L.Ed.2d 708 (1983).Where the employee speaks ‘‘as a citizenTTT upon matters of public concern,’’ theFirst Amendment offers protection butonly where the speech survives a screeningtest. Pickering v. Board of Ed. of Town-ship High School Dist. 205, Will Cty., 391U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d811 (1968). That test, called, in legalshorthand, ‘‘Pickering balancing,’’ requiresa judge to ‘‘balance TTT the interests’’ ofthe employee ‘‘in commenting upon mat-ters of public concern and the interest ofthe State, as an employer, in promotingthe efficiency of the public services it per-forms through its employees.’’ Ibid. Seealso Connick, supra, at 142, 103 S.Ct. 1684.

categorically disentitled to any First Amend-ment protection) giving great weight in theirfavor to workplace disharmony and distrust

caused by Ceballos’s actions. E.g., App. 477–478.


(4) Our prior cases do not decide whatscreening test a judge should apply in thecircumstances before us, namely, when thegovernment employee both speaks upon amatter of public concern and does so in thecourse of his ordinary duties as a govern-ment employee.

S 446II

The majority answers the question byholding that ‘‘when public employees makestatements pursuant to their official duties,the employees are not speaking as citizensfor First Amendment purposes, and theConstitution does not insulate their com-munications from employer discipline.’’Ante, at 1960. In a word, the majoritysays, ‘‘never.’’ That word, in my view, istoo absolute.

Like the majority, I understand theneed to ‘‘affor[d] government employerssufficient discretion to manage their opera-tions.’’ Ibid. And I agree that the Consti-tution does not seek to ‘‘displac[e] TTT

managerial discretion by judicial supervi-sion.’’ Ante, at 1961. Nonetheless, theremay well be circumstances with specialdemand for constitutional protection of thespeech at issue, where governmental justi-fications may be limited, and where admin-istrable standards seem readily available—to the point where the majority’s fears ofdepartment management by lawsuit aremisplaced. In such an instance, I believethat courts should apply the Pickeringstandard, even though the government em-ployee speaks upon matters of public con-cern in the course of his ordinary duties.

This is such a case. The respondent, agovernment lawyer, complained of retalia-tion, in part, on the basis of speech con-tained in his disposition memorandum thathe says fell within the scope of his obli-gations under Brady v. Maryland, 373U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215(1963). The facts present two special cir-

cumstances that together justify FirstAmendment review.

First, the speech at issue is professionalspeech—the speech of a lawyer. Suchspeech is subject to independent regulationby canons of the profession. Those canonsprovide an obligation to speak in certaininstances. And where that is so, the gov-ernment’s own interest in forbidding thatspeech is diminished. Cf. Legal ServicesCorporation v. Velazquez, 531 U.S. 533,544, 121 S.Ct. 1043, 149 L.Ed.2d 63 (2001)(‘‘Restricting LSC [Legal Services Corpo-ration] attorneys in advising their clientsand S 447in presenting arguments and analy-ses to the courts distorts the legal systemby altering the traditional role of the attor-neys’’). See also Polk County v. Dodson,454 U.S. 312, 321, 102 S.Ct. 445, 70L.Ed.2d 509 (1981) (‘‘[A] public defender isnot amenable to administrative direction inthe same sense as other employees of theState’’). See generally Post, SubsidizedSpeech, 106 Yale L.J. 151, 172 (1996)(‘‘[P]rofessionals must always qualify theirloyalty and commitment to the verticalhierarchy of an organization by their hori-zontal commitment to general professionalnorms and standards’’). The objectivespecificity and public availability of theprofession’s canons also help to diminishthe risk that the courts will improperlyinterfere with the government’s necessaryauthority to manage its work.

Second, the Constitution itself here im-poses speech obligations upon the govern-ment’s professional employee. A prosecu-tor has a constitutional obligation to learnof, to preserve, and to communicate withthe defense about exculpatory and im-peachment evidence in the government’spossession. Kyles v. Whitley, 514 U.S.419, 437, 115 S.Ct. 1555, 131 L.Ed.2d 490(1995); Brady, supra. So, for example,might a prison doctor have a similar con-stitutionally related professional obligation


547 U.S. 449

to communicate with superiors about seri-ously unsafe or unsanitary conditions inthe cellblock. Cf. Farmer v. Brennan, 511U.S. 825, 832, 114 S.Ct. 1970, 128 L.Ed.2d811 (1994). There may well be other ex-amples.

Where professional and special constitu-tional obligations are both present, theneed to protect the employee’s speech isaugmented, the need for broad govern-ment authority to control that speech islikely diminished, and administrable stan-dards are quite likely available. Hence, Iwould find that the Constitution mandatesspecial protection of employee speech insuch circumstances. Thus I would applythe Pickering balancing test here.

III

While I agree with much of JusticeSOUTER’s analysis, I believe that the con-stitutional standard he enunciates failsS 448to give sufficient weight to the seriousmanagerial and administrative concernsthat the majority describes. The standardwould instruct courts to apply Pickeringbalancing in all cases, but says that thegovernment should prevail unless the em-ployee (1) ‘‘speaks on a matter of unusualimportance,’’ and (2) ‘‘satisfies high stan-dards of responsibility in the way he doesit.’’ Ante, at 1967 (dissenting opinion).Justice SOUTER adds that ‘‘only commenton official dishonesty, deliberately uncon-stitutional action, other serious wrongdo-ing, or threats to health and safety canweigh out in an employee’s favor.’’ Ibid.

There are, however, far too many issuesof public concern, even if defined as ‘‘mat-ters of unusual importance,’’ for the screento screen out very much. Governmentadministration typically involves matters ofpublic concern. Why else would govern-ment be involved? And ‘‘public issues,’’indeed, matters of ‘‘unusual importance,’’are often daily bread-and-butter concerns

for the police, the intelligence agencies, themilitary, and many whose jobs involve pro-tecting the public’s health, safety, and theenvironment. This aspect of JusticeSOUTER’s ‘‘adjustment’’ of ‘‘the basicPickering balancing scheme,’’ ibid., is simi-lar to the Court’s present insistence thatspeech be of ‘‘legitimate news interest’’when the employee speaks only as a pri-vate citizen, see San Diego v. Roe, 543U.S. 77, 83–84, 125 S.Ct. 521, 160 L.Ed.2d410 (2004) (per curiam). It gives no extraweight to the government’s augmentedneed to direct speech that is an ordinarypart of the employee’s job-related duties.

Moreover, the speech of vast numbers ofpublic employees deals with wrongdoing,health, safety, and honesty: for example,police officers, firefighters, environmentalprotection agents, building inspectors, hos-pital workers, bank regulators, and so on.Indeed, this categorization could encom-pass speech by an employee performingalmost any public function, except perhapssetting electricity rates. Nor do theseS 449categories bear any obvious relation tothe constitutional importance of protectingthe job-related speech at issue.

The underlying problem with thisbreadth of coverage is that the standard(despite predictions that the government islikely to prevail in the balance unless thespeech concerns ‘‘official dishonesty, delib-erately unconstitutional action, other seri-ous wrongdoing, or threats to health andsafety,’’ ante, at 1967 (SOUTER, J., dis-senting)), does not avoid the judicial needto undertake the balance in the first place.And this form of judicial activity—the abil-ity of a dissatisfied employee to file acomplaint, engage in discovery, and insistthat the court undertake a balancing ofinterests—itself may interfere unreason-ably with both the managerial function(the ability of the employer to control theway in which an employee performs his


basic job) and with the use of other griev-ance-resolution mechanisms, such as arbi-tration, civil service review boards, andwhistle-blower remedies, for which em-ployees and employers may have bar-gained or which legislatures may have en-acted.

At the same time, the list of categoriessubstantially overlaps areas where the lawalready provides nonconstitutional protec-tion through whistle-blower statutes andthe like. See ante, at 1962 (majority opin-ion); ante, at 1970 – 1971 (SOUTER, J.,dissenting). That overlap diminishes theneed for a constitutional forum and alsomeans that adoption of the test would au-thorize Federal Constitution-based legalactions that threaten to upset the legisla-tively struck (or administratively struck)balance that those statutes (or administra-tive procedures) embody.

IV

I conclude that the First Amendmentsometimes does authorize judicial actionsbased upon a government employee’sspeech that both (1) involves a matter ofpublic concern and also (2) takes place inthe course of ordinary job-related duSties.450

But it does so only in the presence ofaugmented need for constitutional protec-tion and diminished risk of undue judicialinterference with governmental manage-ment of the public’s affairs. In my view,these conditions are met in this case andPickering balancing is consequently appro-priate.

With respect, I dissent.

,

547 U.S. 489, 164 L.Ed.2d 749

Jacob ZEDNER, Petitioner,

v.

UNITED STATES.

No. 05–5992.

Argued April 18, 2006.

Decided June 5, 2006.

Background: Defendant was convictedfollowing a jury trial in the United StatesDistrict Court for the Eastern District ofNew York, Thomas C. Platt, Jr., SeniorDistrict Judge, of attempting to defraud afinancial institution and sentenced 63months’ imprisonment. Appeal was taken.The United States Court of Appeals forthe Second Circuit, Leval, Circuit Judge,401 F.3d 36, affirmed conviction. Certiorariwas granted.

Holdings: The Supreme Court, JusticeAlito, held that:

(1) a defendant may not prospectivelywaive the application of the SpeedyTrial Act;

(2) defendant’s prospective waiver of theSpeedy Trial Act ‘‘for all time’’ wasineffective;

(3) defendant was not estopped from chal-lenging the excludability districtcourt’s grant of a continuance;

(4) district court’s 91-day continuance todefendant was not excluded under thespeedy trial clock; and

(5) when a district court makes no findingson the record in support of an ends-of-justice continuance under the SpeedyTrial Act, harmless-error review is notappropriate.

Reversed and remanded.

Justice Scalia, concurring in part, con-curred in judgment, and filed opinion.

547 U.S. 410 GARCETTI v. CEBALLOS 1951

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