HOSTS
PETER SHAMSHIRI
MICHAEL LIROFF
RHIANNON HAMAM
[ARCHIVE CLIP, Supreme Court: We'll hear argument next in 04-473. Garcetti versus Ceballos.]
Leon Neyfakh: Hey, everyone. This is Leon from Prologue Projects. On this episode of 5-4, Peter, Rhiannon and Michael are talking about Garcetti v. Ceballos, a case from the early 2000s about the free speech rights of government employees. Richard Ceballos, a prosecutor in Los Angeles, discovered that a sheriff's deputy had misrepresented facts in an affidavit that had been used to obtain a search warrant. Ceballos wrote an internal memo to his supervisors recommending that the case be dismissed. The memo was ignored, and afterwards Ceballos was demoted and denied a promotion. Ceballos sued, arguing that his employer had retaliated against him for exercising his First Amendment rights. But the Supreme Court ruled that when government employees speak as part of their official job duties, that speech is not protected by the First Amendment, even if it exposes corruption or misconduct. This is 5-4, a podcast about how much the Supreme Court sucks.
Peter Shamshiri: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have ratfucked our nation, like the media is trying to ratfuck. Zohran Mamdani.
Michael Liroff: Mm-hmm.
Peter: I'm Peter. I'm here with Michael.
Michael: Hey, everybody.
Peter: And Rhiannon.
Rhiannon Hamam: Hello. Big election coming up.
Michael: Election day. Don't forget to vote.
Peter: Election day as this drops. Don't forget to vote for Andrew Cuomo.
Rhiannon: [laughs]
Peter: Lest we all fall under sharia law, folks.
Michael: I'm a Sliwa die hard. Sliwa? Sliwa? How's it pronounced? I don't know.
Peter: I believe it's Sliwa. Although yeah, I've never really known.
Michael: If you want someone ...
Rhiannon: And he doesn't want you to know.
Michael: ... to finish Eric Adams's job of ridding New York of rats, it's gotta be the guy with, like, 500 cats, right? That's the guy.
Peter: He could do it himself.
Rhiannon: Oh, is he a cat guy?
Peter: Well, he's got 20 in, like, a studio apartment, so it's not, like, in a cute way.
Michael: I would say it goes beyond being a cat guy into something ...
Rhiannon: What a special race. What a special slate of elected officials you have here.
Peter: Yeah. There will probably be more in the last week, but as we're recording, the most recent attempted smear on Zohran is that he had said, like, "My aunt talked to me about the atmosphere after 9/11." And then, like, the New York Post did an expose. It wasn't his aunt. It was his dad's cousin!
Michael: [laughs] His dad's cousin!
Peter: Got him. Busted.
Michael: And they did it, like they—they ran it like it was a huge scandal. Like, "What Zohran Doesn't Want You to Know: It Wasn't His Aunt."
Rhiannon: And by the way, a person that, you know, depending on what language he's speaking in, a person that he very likely calls "aunt," "auntie," you know?
Michael: Oh, yeah.
Peter: Yeah, because the proper terminology is "cousin once removed."
Rhiannon: Right.
Michael: That's right.
Peter: You know how I know that? Because my cousin had a kid, and then we were all, like, sitting around like, "Wait, what am I to this kid?"
Rhiannon: Right. What's our relationship? Yeah, right.
Peter: And I had to, like, look it up.
Rhiannon: Yeah.
Michael: Yeah.
Peter: Because who the fuck says that? Who the fuck says "cousin once removed?"
Rhiannon: Right. And the cousin's probably gonna call you uncle, right? Like, this is ...
Peter: That is what I insisted. No one says "cousin once removed." It's like something you'd put in a court document.
Michael: I have multiple friends whose kids call me "uncle," who are not related by blood at all.
Rhiannon: This is so stupid.
Peter: Right. No one uses terminology other than "uncle," "aunt," whatever in this context.
Michael: Mm-hmm.
Rhiannon: Mm-hmm.
Peter: All right. Today's case, Garcetti v. Ceballos. This is a case from 2006 about free speech, specifically free speech for government employees. Richard Ceballos was a prosecutor who thought his office was using a dishonest affidavit as evidence. He wrote a memo explaining this to his superiors, and they apparently got pissed off. He claimed that they got so heated about this that they retaliated against him, denying him promotions and so forth. And so he brought a claim. He said that this was a violation of his First Amendment rights. His employer is the government, right?
Michael: Uh-huh.
Peter: He engaged in speech by writing this memo, and now the government, his employer, is retaliating against him. First Amendment violation, right?
Rhiannon: Yeah.
Peter: Wrong, idiot.
Rhiannon: Open and shut. Oh! Sorry, my bad.
Peter: I tricked you. I tricked you, Rhi.
Rhiannon: Back to law school. Back to law school for her!
Michael: [laughs]
Peter: The Supreme Court, in a five to four decision, said, "No, no. Your little workplace memo isn't protected by the First Amendment." And in doing so, they redefined the scope of the First Amendment for public employees, and potentially paved the way for bad faith actors like the Trump administration to punish dissent within the government. This is part of our continued series, because we've been doing all of, like, the latest Supreme Court cases all year. And in recent weeks, we've started to step back, take a look at cases from history that have sort of laid the foundation ...
Rhiannon: Yeah.
Peter: ... for the Trump administration. We did INS v. Lopez-Mendoza. And now this is in the same tradition.
Rhiannon: Yeah, exactly. Laying it up. Giving the Trump administration a layup even back in the early 2000s. Even—shit, back in the '70s. Now this case, Richard Ceballos, his employment, he's a government employee. Where? A DA's office. And you know what I love more than anything? Drama in a DA's office. Drama amongst the prosecutors. The pigs themselves, the legal pigs themselves fighting? Oh, there's not a better story for me. I'm getting deep.
Peter: Drama in the pig pen.
Michael: [laughs]
Rhiannon: Some shit slinging in the pig pen, you're saying? Oh-ho, I'm watching. Okay? All right. So in 1998, Richard Ceballos was employed as a deputy district attorney at the LA County DA's office in Los Angeles. And now mind you, he had started working there in 1989, you know, by this time, almost a decade at the prosecutor's office there. And by this point in 1998, when our story starts, he was like a mid-level manager. He supervised a few other deputy district attorneys.
Rhiannon: And so one day, a defense attorney got in touch with Richard. And the defense attorney says that they have concerns that a sheriff's deputy lied on an affidavit to get a search warrant. And that search warrant, of course, led to the search of the defense attorney's client's house. And the defense attorney is bringing up these concerns. "Hey, I think your sheriff's deputy lied," and talking to the prosecutor's office about it. So the defense attorney says, "Hey, look. Richard, can you look into this? I am going to file a motion to challenge the warrant, but also look into it yourself. I think this guy lied in a pretty big way."
Rhiannon: So Richard Ceballos does an investigation, takes this complaint seriously, looks into it. He looks at the search warrant, he looks at the affidavit that this deputy sheriff filled out in order to get the judge's signature on this search warrant. And in fact, he actually goes out to the location and he looks at it, like, looking at do the facts that the sheriff talks about, the description of the location, does that actually match this place in real life?
Rhiannon: And so Richard Ceballos, after doing this investigation, concludes that this sheriff's deputy did, in fact, lie. And he lied in big ways that resulted in this search warrant, resulted in the warrant being executed at this, you know, now criminal defendant's house, led to the arrest of the criminal defendant, and this defendant being charged with crimes, all based on lies. So Ceballos, in fact, wrote that the affidavit, at the least, grossly misrepresented facts in the best light he can give this, right? Gross misrepresentation of the facts.
Rhiannon: And so what does Ceballos do? He starts to notify his supervisors that he thinks that there's something really fishy about this sheriff's deputy. And over the course, he's still investigating. He speaks with the deputy sheriff directly. He says, "Man, that convo was really unsatisfactory for explaining the inaccuracies. I still think this guy's lying, right? That cleared up nothing."
Rhiannon: So Richard Ceballos basically writes an internal memo. He writes a disposition memorandum to his supervisors. He's saying, "Hey, I looked into this. The warrant was obtained by lies. This criminal case should be dismissed. I am recommending that this case be dismissed." He also writes a memo, you know, sort of describing the conversation that he had with the deputy sheriff. He is using all of the sort of internal professional standards. He's doing everything by the book to notify supervisors at the prosecutor's office, hey, there's some legal problems with this case.
Rhiannon: So a meeting is called by his supervisors to discuss this lying affidavit, right? The problems with this warrant. And at the meeting are Richard Ceballos, his two supervisors in the prosecutor's office, the deputy sheriff himself, lyin' pig, and some other employees from the sheriff's office. The meeting reportedly got pretty heated. You know, somebody from the sheriff's office, a sheriff's lieutenant, has really strong words of criticism for Ceballos for how he's handling things. And in the end, Ceballos's supervisors in the DA's office, they decide we're not gonna dismiss the case. We're still gonna move forward. We're still gonna prosecute this case. Lyin' pigs. [laughs]
Michael: Uh-huh.
Rhiannon: Now that doesn't actually end the story and Ceballos's involvement in sort of, you know, raising a flag. I would say this is pretty unique. Richard Ceballos ends up actually testifying for the defense. Remember, that defense attorney filed a motion to challenge that warrant, meaning there's a hearing in court with testimony from the deputy sheriff, right? They're cross examining all of the witnesses. And Richard Ceballos himself is a witness. He looked into the warrant, he investigated this, and he testifies for the defense, recounting his investigation and his observations, again saying, like, my conclusion was this guy was lying. Just as an aside, there's no way his supervisors liked this. There's no way at the DA's office that they liked that Richard Ceballos testified for the defense here.
Peter: Yeah.
Rhiannon: Now the criminal case proceeded, but at this point, of course, we're focused on Richard Ceballos and his case that gets to the Supreme Court. And it's at this point, after Richard Ceballos has investigated, has recommended that this case be dismissed, there's been a heated meeting with officials from the sheriff's office, and Richard Ceballos has testified as to his findings, Ceballos is subjected at this point to what he says are, you know, really clearly retaliatory employment actions.
Rhiannon: His supervisors in the DA's office are punishing him, he says, for doing his job, and honestly, for doing his job the right way, the way you would want a prosecutor to do it. But whatever. And so Ceballos was reassigned from his management position to a lower-level prosecutor position. So he's demoted. He was transferred to another courthouse, and the next time he was up for a promotion, Ceballos was denied for that promotion.
Rhiannon: So he has a few different legal claims that he pursues, including, like, you know, claims under employment law that he's, like, being illegally retaliated against. But what ends up going up to the Supreme Court here is a First Amendment question. Ceballos is saying, "Hey, I'm a public employee. Like, my employer is the government, and the government can't infringe my free speech rights under the First Amendment. I was using my free speech rights when I wrote this memo, when I testified in court, and now the government is punishing me for it. This should be protected speech." That's how we get to the Supreme Court.
Peter: Right. So let's talk about the law here. Big picture, there is a problem to be solved. The First Amendment prevents the government from restricting your speech, but the question here is what that means for employees of the government, because they have free speech rights, but also the government needs to be able to manage and discipline their employees, right? So how do we balance this? I think this is genuinely a tricky question.
Rhiannon: Yeah.
Peter: A lot of our cases are about the court doing something outrageous, and I do disagree with the opinion here, but it's a situation where the problem that they're trying to solve is, in fact, a tough one with, like, no really clear answers.
Rhiannon: Yeah, pretty nuanced. Pretty nuanced constitutional question, actually.
Michael: It's a nuanced question, which I think calls for a nuanced answer, which is precisely what the majority does not give us here. Which is the problem with it.
Peter: Right.
Rhiannon: Exactly.
Peter: There was a case in the 1960s called Pickering that tried to sort this out. And what the court said there was basically that if a government employee is speaking on a matter of public concern, that was generally protected under the First Amendment. And the court would do, like, a balancing test: what's the value of the free speech, we'd weigh that against the government's needs to manage the employees or whatever.
Peter: So in that case, a teacher wrote a letter to the editor about the school board's priorities, and the court said that that was protected. He was speaking out on a matter of public concern, right? But if you think about it, there's a lot of gray area here. What counts as a matter of public concern isn't entirely clear. Like, if you work for the government, lots of things you discuss at work might be of public concern. And then the court is balancing the value of that speech against the government's interests. These are hard things to do, right? It's all kind of opaque.
Rhiannon: Yeah. And at this point, there is Supreme Court jurisprudence about government employee speech, but there isn't a case yet about kind of this particular circumstance, which is about when a government employee both speaks about a matter of public concern—hello, lying cops. Right? Like, this is a matter of public concern. And does it in the course of ordinary duties of his job.
Peter: Right.
Rhiannon: Like, he's writing a memo. Like, these are things that he has to do as a prosecutor. These are part of his job description and his duties. But the matter itself, the content of the speech itself is something of public concern. And this is the, like, specific question here.
Peter: So the majority is written by Anthony Kennedy—rest in peace.
Rhiannon: [laughs]
Peter: Fingers crossed.
Michael: [laughs]
Peter: And he basically disposes of this old framework, and he replaces it with a new one. He says that if you're a government employee, your speech is not protected if you're speaking in, like, the context of your official duties, right?
Rhiannon: Yeah.
Peter: So if you're speaking in the scope of your job duties, that's not protected because that's part of your job, and your employer, the government, needs to be able to discipline you, et cetera. So they say Ceballos's little memo here and his testimony, that's all unprotected because it was put together as part of his job.
Rhiannon: Mm-hmm.
Peter: So in some ways, this eliminates the gray areas that we were talking about, right? No more balancing the value of the speech against the interests of the government. No more trying to figure out if this is a matter of public concern. Now the question is just: Is the speech we're talking about within the scope of your job duties? If so, not protected. So I think at a glance, this looks simpler and cleaner than the previous system we had, but it also creates some weirdness and absurdities. This guy got into trouble for writing a memo his superiors did not like.
Rhiannon: Yeah.
Peter: But under this decision, if he had written the same letter to a newspaper and gotten it published, that likely would have been protected speech.
Rhiannon: Yeah.
Peter: Right?
Michael: Mm-hmm.
Peter: Sort of a silly outcome that you can raise this concern to your boss and it's not protected speech, but you can tell the whole world and it is.
Rhiannon: So that would be, like, Pickering, right? The teacher writing an op-ed.
Peter: Right. And I think that's like the real problem with this decision: It creates some weird incentives for both the government and government employees. If you're a public employee, and you witness something unethical like this dude did, you're now disincentivized from escalating your concerns internally because that can get you into trouble. The majority deals with this by saying, well, there are whistleblower laws, right? So if someone wants to raise a concern, you can use whistleblower laws. But those laws are thin. They don't apply to every circumstance, right? They don't protect everything and everybody in every circumstance. So they don't serve as, like, a one-for-one replacement of actual speech protections. And Kennedy basically says, well, look, don't worry. The government can, quote, "encourage its employees to voice concerns privately by instituting internal policies and procedures that are receptive to employee criticism."
Rhiannon: Okay?
Peter: It's like, but why would they do that when you just held that legally they don't have to.
Michael: Yeah, that's exactly backwards about how incentives work.
Peter: Right. Like, before this decision came out, public employees could speak much more freely. The court takes away that right, and then they say, "Well, maybe the government will create internal policies that give them the right back."
Rhiannon: The policies that were in place and that Ceballos used, right? Like, I have concerns about this case. I'm bringing up my concerns in a memo, right? And, like, now you've said that's not protected. So what policy rectifies, repairs that issue?
Peter: Right. They're basically just saying, like, "Well, maybe they will create an internal policy that will rebuild the First Amendment right that we just destroyed."
Rhiannon: [laughs] Yeah.
Michael: Right. But it's like, I mean, not only is, like, why would they do that? Like, somebody filed a complaint here and they crushed it, right? They didn't listen to it. So it's like they fought it all the way up to the fucking Supreme Court, right? Like, they're not—we know they have no interest in this because this case exists.
Rhiannon: Exactly.
Peter: Right.
Michael: If they had any interest in creating such a path, this case wouldn't exist.
Peter: And that's the whole point of rights, right? The point of rights is like, you're telling the government that it has to do something.
Michael: That's black letter Supreme Court law that a statutory avenue cannot replace a constitutional right.
Peter: Right. I mean, but they're just saying, like, "Well, what if instead of a constitutional right, what if they just did it on their own?"
Rhiannon: What if your boss is just cooler with being criticized, and maybe your boss likes it sometimes, instead.
Peter: It's a very conservative view of public service and a very conservative view of jobs. It's very important to conservatives that your boss be able to fire you whenever he wants.
Rhiannon: [laughs] Yes.
Peter: Like, that's your boss and he's in charge is so important to conservatives. Like, anything that gets between your boss and, like, firing that guy, conservatives are like, "I don't know about that."
Michael: I mean, that was one of the big scandals of the 2012 campaign. But Mitt Romney literally said in a fucking debate on national TV, "I like being able to fire people." Right?
Rhiannon: Yeah.
Michael: Like, that was ...
Rhiannon: That's my bread and butter!
Michael: ... a direct quote. That's their thing, man.
Rhiannon: Yeah.
Michael: That's their thing.
Rhiannon: Their theme is "I'm gonna be the boss one day and I'm gonna fire people." But no—but literally, like, this idea, like, we're being kind of glib about it, but it's here in this majority opinion. A big thing that they talk about, like, this interest that has to be weighed is not just, like, the government's interest in, like, being an employer, but, like, administrative efficiency. They talk about this. Like, they need to be able to punish employees efficiently. So if they make a decision to fire somebody or demote somebody or move them, yeah, maybe it's in retaliation for something, but this is just such a big concern. We really need to support the government in acting like a shitty employer in an efficient way.
Peter: And like any other—like any other job, right?
Rhiannon: Yeah.
Peter: Like, they want government service to be like any other job.
Rhiannon: Depoliticized. Corporatized, essentially.
Peter: Right. And I think you could envision a world where it's like a different type of job, right? Like, the relationship between the employee and employer is just different than it is in the private sector.
Rhiannon: And the point of the job, the public good that you want out of the fucking job, you know?
Michael: Mm-hmm.
Peter: That is the sort of like idealized version of public sector work, right? Like, you are serving the public, and if you believe that someone else is not serving the public, is doing something unethical or whatever, you need an avenue to be able to express that. And I mean, think about what happened here. The sort of, like, good faith read of what the prosecutor's office did here, which the court does seem to buy, is like, his memo was actually so bad that this was about performance, really. Right?
Rhiannon: Yeah.
Peter: Like, this was like a performance issue. His analysis was so bad that this was a performance issue.
Rhiannon: And that, like, maybe it was incendiary, right? Like, he was just doing it to, like, fuck shit up, to stir shit up, done with kind of like a vengeance that wasn't, like, supported by the facts.
Peter: Right. And the thing is, though, that you could say that about anything. And it seems pretty clear that what happened here is that he just dissented a little too aggressively for his bosses. They don't like it. It's—you know, the culture in most prosecutor's offices is gonna be one where there's deference and, you know, it's a pseudo-military operation over there—they're cops. And they got irritated. They got irritated by this guy, and so they ginned up a whole thing where he is terrible at his job and is sort of acting out, but it seems, like, at a glance, very suspicious.
Rhiannon: Yeah.
Michael: Yeah.
***
Michael: Now that we've talked about how stupid the majority opinion is, let's talk a little bit about the dissents. Stevens has a very pithy one. I liked it because it was only, like, two paragraphs long. His opening line, I think, is pretty good. He says, "The proper answer to the question whether the First Amendment protects a government employee from discipline based on speech made pursuant to the employee's official duties is sometimes, not never."
Rhiannon: Yeah. Yeah, you see, in all—there's three dissents. You see in all three dissents, the dissenters at least trying to capture the nuance of the question.
Peter: Yeah.
Michael: I mean, even though it's only a couple paragraphs, he does make a point that I think was missing from at least Souter's dissent, which is the principal dissent. It's signed on to by Ginsburg and Stevens. Breyer's kind of writing by himself. But this point is absent from it where he says, you know, it's perverse to fashion a rule where employees are incentivized to voice their concerns publicly before they talk to their supervisors, right? That you're more protected writing an op-ed than you are writing a memo to your boss.
Rhiannon: Yeah. Don't you want the prosecutor, like, you know, the deputy, the lying prosecutors to be bringing these concerns to the supervisors first, internally at the DA's office?
Michael: Yeah, it's crazy. There's not a lot more to say about that dissent, because that was pretty much the entirety of it. I quoted about half of it there.
Rhiannon: Yeah, good point.
Peter: I mean, it's a strong point. And, like, yeah, it's—the incentives here are just all fucked up. And, like, the other side of that is that it incentivizes the government to do what they did here, which is take behavior that they don't like, and then frame it as this guy was doing his job poorly.
Rhiannon: Right. Right.
Michael: Right.
Peter: Frame it as a performance issue.
Rhiannon: Mm-hmm. Mm-hmm.
Michael: So Souter, he writes a much more robust dissent. Like I said, it's—I think you can call it the principal dissent, again, trying to capture this nuance, right? He talks about how, like, on the one end, private citizens talking on matters of public importance is, like, the heart of the First Amendment, right? And at the other end, government employees complaining about, like, Brenda's cooking fish in the microwave again, and it smells really bad, doesn't really pass the constitutional muster there.
Rhiannon: Yeah.
Michael: And he's like, but in between these points lies, you know, a public employee's speech unwelcome to the government or on a significant public issue, right? It's in the middle, and it requires nuance. It requires a balancing test. In particular, he talks a lot about the Pickering balancing test, although he wants to modify it a little. You know, he concedes that government needs efficiency. They need to be able to effectuate their policy, but he thinks there needs to be a minimum standard, essentially, of an issue that's of significant enough public concern.
Michael: He says the speech needs to be on a matter of unusual importance, and the public employee must satisfy high standards of responsibility in the way he or she speaks on that matter. So you can't just go out breathing fire and demagoguing your boss because, you know, you think they've got it wrong on something important. You still have to be judicious, right? You need to be careful about how you do things.
Michael: And his point is this is something that can weed out a lot of bullshit claims at the start, and for those that get filed anyway, you know, you can get them done in summary judgment. You'll only be really concerned with, like, real cases. I think that's right. Like we said, it's a nuanced thing, it requires a nuanced test. I did think he had a very sharp point towards the end, talking about this Givhan case about a public school teacher who complained to the principal about discriminatory hiring practices. And that speech was protected, and according to the majority, it's because, well, yeah, a teacher doesn't have hiring, as in their, you know, remit of responsibilities, right? They teach kids
Rhiannon: Right. Hiring isn't the teacher's job duties.
Michael: Right. And so his point is, like, it's insane that a schoolteacher is protected when complaining to the principal about hiring policy, but a school personnel officer would not be. The person with direct knowledge of the hiring process and policies.
Rhiannon: Whose duties are to hire. Yeah.
Michael: Yeah. Is muzzled.
Peter: Again, another just, like, weird absurdity that this framework creates, even though it seems simple on its face, right? Like, oh, you can get disciplined for something that's in the scope of your job duties. You might think, oh, that's common sense. But now, yeah, a school janitor who's like, "Hey, I think your hiring policies are bad," that's protected by the First Amendment. But someone who's in charge of hiring being like, "I think we're doing this wrong," not protected by the First Amendment.
Michael: Yes.
Rhiannon: Yeah.
Peter: Why? It doesn't—it just doesn't make any real sense.
Michael: No, it's exactly backwards.
Rhiannon: Yeah, exactly backwards. And, you know, too absolute. And this is something that Breyer then points out in the last dissent here. Justice Breyer, writing separately to capture in his own mind, you know, what the nuance is here. And Breyer says, first of all, you know, the majority holding that public employee statements that are made pursuant to their official job duties are just not protected by the First Amendment, like, this is too absolute. The majority says, like, if you're a government employee speaking pursuant to your official job duties, well you're not a citizen doing protected speech ever. Breyer says no, that's too extreme. He says—also like the other dissents, he says the First Amendment does have to apply at least sometimes in these situations.
Rhiannon: I think Breyer takes the day for me in terms of his argument about how to answer this question and similar questions, which is he says we should just use the Pickering test. We should just balance the way the Pickering case said we should balance these different incentives and the public good and, you know, what the government needs are when the government is the employer, et cetera, et cetera. And he makes good points about actually, this is a special kind of professional speech. This isn't just any employee, government employee or not, right? This isn't just any employee talking in the way their job duties mandate that they talk.
Michael: Right.
Rhiannon: Breyer says, actually this is a lawyer's speech. And not that lawyers are special-special, but stay with me. Lawyer speech is sometimes ruled by ethical rules, what Breyer calls, like, canons of the profession. Like, there are other rules that mandate lawyer speech in different ways. And think, for example, in a prosecutor's office. Prosecutors ethically, under, like, canons of the legal profession, in most places, written ethical duties, the prosecutor's duty is to justice.
Michael: Right.
Rhiannon: Like, these are the rules that are actually layered into how prosecutors talk, how prosecutors must talk. Sometimes these ethical rules obligate a lawyer to speak and to speak in a certain way. And beyond just kind of like professional codes of conduct, canons of the legal profession, like, the Constitution itself obligates lawyers to speak in a certain way. Which is in part what Richard Ceballos says in this case.
Michael: Right.
Rhiannon: There's a case, there's a Supreme Court case, Brady v. Maryland, which mandates that if I have any evidence that is potentially exculpatory to a defendant, I have to share that. So Ceballos is saying I had to say what I said. This is to protect the constitutional rights of the defendant. I would be violating this person's constitutional rights if I had not. And so Breyer says these kinds of, like, overlapping rules, constitutional rules, professional, ethical, they exist because the job of a lawyer in this case, the job of a prosecutor, this is a public good. We should be incentivizing and supporting in every way possible that there are serious responsibilities here, a duty to justice for the public, for the State of California in this case. And so this isn't just professional speech, this isn't just Richard Ceballos was doing his job duties. It's not just on-the-job stuff. As part of his job, there are nuanced areas of speech where these kinds of public interests should be weighed in this balancing test.
Rhiannon: And Breyer concludes the First Amendment should apply. It's so important that the First Amendment should protect Ceballos in this case. He says, "Where professional and special constitutional obligations are both present, the need to protect the employee's speech is augmented, and the need for broad government authority to control that speech is diminished." And so Breyer says in that circumstance, if the government employee's speech involves a matter of public concern, and it takes place even in the course of just, quote-unquote, "ordinary job-related duties," the First Amendment gotta apply here. And he's not saying it's absolute, he's not saying it's every situation. There's some important nuance that we have to take into account about what actually the speech was.
Michael: Yeah. And I just want to add to that, like, I'm not sure if it's changed over the years, but California's oath of admission to the bar, so what you have to swear on to be a licensed attorney in California is that you will support the Constitution of the United States. Very simple, but that's it. I solemnly swear that I will support the Constitution of the United States and the Constitution of the State of California. That's it. And on top of that, like, the classic, the classic rule of professional conduct that, like, everybody knows is lawyers are not supposed to suborn perjury. They're not supposed to help people lie on the stand.
Rhiannon: If you know somebody has lied legally, you have to say something.
Michael: Yeah. Yeah, you have to not admit it or say something about it, right? You can't put it forward as evidence. This is like, everybody fucking knows this, right? Like, it's crazy that it's this thing that they're like, this specific type of public official speaking is not protected by the First Amendment is an attorney believing he's upholding the Constitution and refusing to support perjury is not protected. That's nuts. That's nuts.
Peter: Right. You have an ethical obligation to call this shit out if you know someone to be perjuring yourself.
Michael: You could arguably be disbarred for not doing it. Like ...
Peter: Right. So the—what the court is saying here, I guess, is like, but if you get it wrong ...
Michael: Right.
Peter: ... you're cooked. Like, if you guess wrong, you're fucking toast, buddy. Demotion. Nobody gives a shit. Not protected. Probably worth noting, something we haven't really talked about, but, like, this got a lot of attention when it dropped, in large part because a lot of academics were like, "Well, I work for a public university. Can I no longer speak freely in the scope of my employment?" Which is like speaking, talking to students, maybe publishing research. Like, now that's not protected by the First Amendment? Surely that can't be it. And it essentially is. I mean, the state of affairs now is that you need to cross your fingers and hope that your school has a good policy regarding the speech of professors, right? And most of them do. But if a large state school—I don't want to use a real one, but, like, I'll make one up—the University of Texas, if they wanted to just crack down on free speech, they could, right? They could say, "I don't like what this staffer or professor is saying. They're saying it in the scope of their employment, they're fired." Boom. No First Amendment protection.
Rhiannon: Yeah. And this is a really real thing. If you're on a campus right now, whether you work at a university or if you're a student at a university, this idea about, like, academic freedom, freedom of speech for educators is, like, massively in controversy right now. There's Texas State University who just a couple of weeks ago, at the time of this recording, Thomas Alter, he was fired after a video circulated on social media. He was talking about political organizing. In fact, actually, he was criticizing, condemning, who he called, like, "insurrectional anarchists." Like, he was condemning actually, like, sort of people who, like, maybe riot. And he said, quote, "Without organization, how can anyone expect to overthrow the most bloodthirsty, profit-driven, mad organization in the history of the world, that of the United States?"
Peter: Classic lefty post.
Rhiannon: Yeah.
Peter: He's mad at the left, but also talking about overthrowing the United States government at the same time.
Rhiannon: Right. And he calls the US bloodthirsty honesty, profit-driven, mad. And he got fired for it.
Peter: Can't say that. Can't say that. No. No. You better salute that flag, buddy.
Rhiannon: Thomas Alter sued, of course, saying his First Amendment rights were being infringed because it's the state of Texas, he's a government employee, they were firing him for expressing himself politically, expressing his political viewpoints. And a district court judge granted an injunction, said—ordered that Thomas Alter had to be reinstated. And so the university, Texas State University did so. And then a couple of weeks later, Texas State just fired him again. Said, quote, "After a thorough review of Dr. Alter's conduct and the information provided, the president of the university has notified Dr. Alter that his employment at Texas State University is terminated. And there will be no further comment." So this is really like an ongoing—you know, people are losing their jobs right now.
Michael: Yeah. No, and it's not just in Texas, right? This is happening in Florida, too. At the New College, DeSantis basically purged the entire board of trustees. I think the dean got fired, too. I know that the head of their library got fired after the school quietly dumped, I think, hundreds or thousands of books, mostly related to gender studies. So yeah, you've got—you got, like, the whole trifecta there of book bans, firing of low-level employees, changing of leadership, all because of, you know, speech, because of unfavored speech.
Rhiannon: Exactly.
Peter: And I think a big picture problem with the majority's framework here is they don't account for what a bad faith actor would do.
Rhiannon: Exactly.
Peter: When we were talking about INS v. Lopez-Mendoza a couple weeks ago, it was the same thing where the court is just sort of like, "Well, we know that the government is full of good people who want to do right by the Constitution, and so therefore—" and then they make their decision, right? And they aren't able to account for bad actors like the ones in this case. Ceballos himself, almost certainly the target of bosses who just don't like the cut of his jib here, right? They're like, "He's a little too—a little too mouthy."
Peter: But also, what about an administration who just wants to purge dissent, right? And so we've obviously seen this under Trump. The latest is like the ongoing purge of attorneys who had anything to do with January 6 prosecutions, right? We also saw the same thing within the FBI, but basically, if you were in the federal government and you took steps to prosecute anything related to January 6, you have been to this point at high risk of losing your job.
Peter: So there were just a couple of prosecutors who were put on leave after filing a sentencing memo. I'm gonna read from this ABC News story here. "Taronto was pardoned by President Donald Trump over his involvement in the January 6 attack on the Capitol, but faced a separate conviction for firearms and threat charges related to a June, 2023 arrest near the home of former President Barack Obama, where he was found in possession of two guns and hundreds of rounds of ammunition, as well as a machete. A day before Taronto's arrest, he claimed he would use a car bomb to drive into the National Instrument Institute of Standards and Technology."
Michael: [laughs]
Rhiannon: Jesus!
Peter: What a narrow—what a niche government beef.
Michael: [laughs] Yeah, I was gonna say it's like, "The meter's too long!"
Peter: So in the process of his sentencing for this, two prosecutors wrote a sentencing memo, right? You write a little sentencing memo explaining why the prosecution is asking for a certain sentence. The sentencing memo said that Taronto was accused of participating in the riot in Washington, DC, by entering the US Capitol building. After the riot, Taronto returned to his home in the state of Washington, where he promoted conspiracy theories about the events of January 6, 2021. So the government has not admitted to this, but it seems quite likely that that little line about conspiracy theories about January 6 might have gotten these two fired or at least put on leave for now. You can't be talking like that in the federal government, right?
Rhiannon: They don't like that.
Peter: You keep saying that it was a conspiracy theory. No, his insane—this insane, murderous man's ramblings are, in fact, the official position of the federal government. And if you dissent, you will be fired.
Rhiannon: Basically, yeah. And, you know, in some of these cases, going back to Texas, sorry, we're talking about bad faith actors, and now, like, the sort of—the power that they have to do retaliatory, punishing employment activity because they don't like somebody's speech, which should be protected under the First Amendment, these bad faith actors are, like, not even hiding it that well or at all.
Rhiannon: So Governor Greg Abbott, a couple weeks ago—this is a totally different professor this time at the University of Texas, the real one, not the fake one that Peter was talking about in theory, but at the real University of Texas, there's a professor who had, in addition to his professor role, was in an administrative job as well at UT. And UT fired him. Said that it was because of ideological differences. And Greg Abbott tweeted, "Texas is targeting professors who are more focused on pushing leftist ideologies rather than preparing students to lead our nation." Government official, governor of the state of Texas saying we are targeting professors for their politics, for their speech, right? And so here's what bad faith actors are doing and saying about what they're doing around people's First Amendment rights. And because of cases like this, now it's just like we've said all year long, right? The Trump administration and their allies and their supporters and conservative freaks across the country just pushing and pushing and pushing the boundaries.
Peter: Yeah. And I think you see a post like that, you see Greg Abbott saying, "Hey, we're targeting professors for ideological reasons." And you're like, "Well, there's an open and shut First Amendment case," right?
Rhiannon: You would think. You would think.
Peter: Not really. Actually quite a gray area, thanks to this case. And this is just another one of those ways in which the conservatives on the court, without being conscious of what was to come, sort of laid the foundation for a world where this can all happen very smoothly, right? Where when someone says, "Hey, I have a First Amendment claim here," the Trump administration can say, "Well, not really, right? We've got a case. We've got a case that says you don't."
Michael: Yeah.
Peter: I think it's just so crucial to their efforts that they have this, like, very, very robust defense of what they're doing, legal defense of what they're doing. And that's all in place because the Supreme Court in the past granted the government this power that it didn't necessarily use, that it didn't always want to use, but when someone arrives who does want to use it, the power is right there for them.
Rhiannon: Exactly. Yeah.
Michael: Yeah. The author of this opinion, if you want even more evidence that he was unable to see what was coming, is the same guy who at Trump's address to a joint session of Congress just this year, he said, "Thank you for teaching young people to love America" to Donald Trump in March of this year.
Peter: That's definitely what's happening, by the way, is young people are loving America more and more now. That's what's happening.
Rhiannon: Because of Trump.
Peter: You fucking dipshit, dude. You old ass dipshit. Time to just—time to walk out of your Nantucket household, straight out into the ocean, brother. It is time. Embrace Poseidon, dude.
Rhiannon: Yeah.
Peter: Go hunting for Atlantis.
Peter: Next week. United States v. Thuraissigiam. This is a case from 2020 about habeas rights for immigrants who were subject to removal. We are sort of continuing our series in historical cases that paved the way for Donald Trump. Follow us on social media @fivefourpod. Subscribe to our Patreon—Patreon.com/fivefourpod—all spelled out, for access to premium and ad-free episodes, special events, our Slack, all sorts of shit. We'll see you next week.
Michael: Bye, everybody.
Rhiannon: Bye.
Michael: 5-4 is presented by Prologue Projects. This episode was produced by Dustin DeSoto. Leon Neyfakh provides editorial support. Our website was designed by Peter Murphy. Our artwork is by Teddy Blanks at CHIPS.NY, and our theme song is by Spatial Relations. If you're not a Patreon member, you're not hearing every episode. To get exclusive Patreon-only episodes, discounts on merch, access to our Slack community and more, join at Patreon.com/fivefourpod.
Peter: Twenty year olds right now? Twenty year olds hate America, like, too much. I'm like, sit down, you know? You don't know enough to hate America as much as you do, right? Like, you hate America the right amount, but your foundation is too weak. You know what I mean? You gotta read a lot first and then—and then you've earned it.