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Alito has experience in public-employee speech cases

By Tony Mauro
First Amendment Center legal correspondent

WASHINGTON — In a case he decided as an appeals court judge nearly 14 years ago, now-Supreme Court Justice Samuel Alito Jr. cited a string of high court rulings to back up this statement: “The day has long since passed when individuals surrendered their right to freedom of speech by accepting public employment.”

On Feb. 17, Alito was handed the chance to affirm or amend that truism. The Court, apparently split on a case involving government employee speech, ordered the case of Garcetti v. Ceballos reargued now that Alito is on board.

The rare rehearing move is a fairly sure sign that the Court was divided 5-4 on the case while Alito’s predecessor Sandra Day O’Connor was on the Court, and the justices want Alito to take a crack at resolving it. The case may be reargued in April.

The Court’s action guarantees that Alito’s 1992 decision on the 3rd U.S. Circuit Court of Appeals in Sanguigni v. Pittsburgh Board of Public Education (968 F.2d 393) will be dredged up and scrutinized by both sides for clues on how to win Alito over in the pending Supreme Court case. Though some commentators viewed the reargument move as bad news for the First Amendment claim in the Garcetti case, Alito’s rulings in Sanguigni and another more recent ruling offer a glimmer of hope.

At issue in Garcetti v. Ceballos is a claim by former deputy Los Angeles district attorney Richard Ceballos that he was unfairly punished for revealing to a defense attorney that a deputy sheriff had lied to obtain a search warrant against the attorney’s client in a criminal case. Ceballos says he was shunned, demoted, and given “freeway therapy” — a transfer to a remote office with a long commute — all in violation of his First Amendment rights.

The 9th U.S. Circuit Court of Appeals agreed with Ceballos, but then-DA Gil Garcetti argued that the circuit ruling would turn virtually every government workplace disagreement into a First Amendment battle.

During oral argument last October, the Supreme Court seemed no closer than ever to finding the right way to apply First Amendment protections to government employees who are punished for speaking their minds.

Justices struggled, along with the lawyers arguing before them, to determine whether the First Amendment even applies to government-employee speech that is work-related, in that previous rulings have mainly protected employees when they speak on matters of “public concern.”

Alito’s 1992 Sanguigni ruling reflects that struggle. In that case, Pittsburgh teacher Phyllis Sanguigni claimed she was punished for writing in a faculty newsletter that staff members were “being put under undue stress,” and pledging to “get to the bottom of the problem.” After the newsletter appeared, Sanguigni said school officials harassed her and gave her below-average performance ratings.

Writing for a unanimous panel, Alito noted Supreme Court decisions that give government employees significant First Amendment protection, but added, “The Court has held that First Amendment rights are implicated only when a public employee's speech relates to matters of public concern.” He cited the 1983 Connick v. Myers decision. Alito went on to decide that Sanguigni’s statements in the newsletter did not meet the Connick “public concern” test but rather “focused solely on employee morale.”

Bottom line: Alito ruled against the teacher. But in doing so he referred to a prior 3rd Circuit ruling, Zamboni v. Stamler (847 F.2d 73, 79), in which a detective in a county prosecutor’s office was punished for complaining and going to court to stop a reorganization plan that adversely affected him. The 3rd Circuit had ruled in favor of the detective’s First Amendment claim. “Unlike the employee in Zamboni,” Alito wrote, Sanguigni did not make comments that were “part of judicial or administrative proceedings” and did not raise any policy issue or allege violations of law.

If Alito still thinks those were significant distinctions to be made, it might be argued that the Garcetti case before the high court bears similarity to the Zamboni case — and therefore raises a matter of public concern that warrants First Amendment protection.

A 2002 Alito decision, also involving a Pittsburgh employee, offers similar hope for First Amendment advocates. In Swartzwelder v. McNeilly, a Pittsburgh police officer challenged a policy that required officers to obtain permission before testifying as expert witnesses in some circumstances. The officer had been subpoenaed to testify as a defense witness in several cases.

Alito’s decision was based in part on the same Connick line of cases, finding that the police department policy restricted speech on matters of public concern. Alito also viewed the regulation as an unconstitutional prior restraint on the officer’s speech.

“Important First Amendment interests are implicated,” Alito wrote.


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