The biggest fear civil rights and open-government advocates is coming true.
In Garcetti v. Ceballos, the United States Supreme Court held that a government employee's speech made in a official capacity was not protected under the First Amendment. The Supreme Court did not consider what would happen. An opinion issued by a 2-1 panel of the Ninth Circuit Court of Appeals is illustrative of a nationwide trend: Police officers who speak out against official corruption are losing their jobs; and the courts will do nothing to stop it.
In Huppert v. City of Pittsburg (here) a police officer spoke to the FBI about official corruption within the Pittsburg Police Department. Soon thereafter, he - but no one else - was punished for following de facto police procedures for filling out police reports. Officer Hubbert claimed that the city's punishment was pretextual. He was being punished, he argued, for cooperating with the FBI.
Hubbert sued, alleging that the city retaliated against him for exercising his First Amendment rights. A split panel of the Ninth Circuit Court of Appeals dismissed his case.
The Ninth Circuit reasoned that of course it's a police officer's job to speak to the FBI. The money quote:
Though Huppert argues that he was repeatedly informed by the FBI that his investigatory work was outside his duties as a police officer, this is not enough to overcome California’s jurisprudence defining such duties. It is clear thatin California a police officer’s official duties include investigating corruption, so as to prevent the commission of crime and assist in its detection. While we do not know the contents of any speech that Huppert made, we do know that such conversations with the FBI would have been to disclose all information known to Huppert regarding the alleged acts of corruption within the PPD. This obviously encompasses his duty to uphold the lawspecifically entrusted to California’s peace officers.
Slip op. at *9338 (citations and quotation marks omitted). That almost no police officer, as an empirical matter, actually cooperates with the FBI or speaks out about public corruption is irrelevant. Hubbert's job was to do what no other police officer within Pittsburg would do. Thus, Hubbert's speech was performed as part of his official duties, and therefore was not entitled to First Amendment protection.
Whether the two judges properly applied Ceballos properly is discussed in the dissent. As a practical matter, every case I've seen takes the two judges' approach. Police of course have to speak out about corruption. It's part of their job duties.
If, as Tyler Cowen often quips, incentives matter, the end result of Ceballos is pretty clear: Don't speak out about police misconduct. At best you'll be the department's pariah. At worst you'll get fired. And the courts won't do anything about it.
