Garcetti v. Ceballos

The Supreme Court tramples upon your most sacred right: the right to complain about your co-workers. If you're not a 5-4 Premium member, you're not hearing every episode! To hear this and other Premium-only episodes, access to our Slack community, and more, join at fivefourpod.com/support http://fivefourpod.com/support. 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. Transcriptions of each episode are available at fivefourpod.com http://fivefourpod.com Follow the show at @fivefourpod on most platforms. On BlueSky, find Peter @notalawyer.bsky.social, Michael @fleerultra.bsky.social, and Rhiannon @aywarhiannon.bsky.social. Our Sponsors: * Check out Mint Mobile and use my code mintmobile.com/fivefour for a great deal: https://www.mintmobile.com * Check out Quince and use my code FIVEFOUR for a great deal: https://www.quince.com Advertising Inquiries: https://redcircle.com/brands

Speaker names marked ? are inferred from speaking time and the show’s known hosts — they are not voice-verified.

• 0:00Speaker 00

  We'll hear argument next in 04473, Garcetti versus Ceballos.

• 0:10Speaker 01

  Hey, everyone. This is Leon from Prologue Projects. On this episode of Five to Four, Peter, Rhiannon, and Michael are talking about Garcetti v. Ceballos, a case from the early 2000s about the pre-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

• 0:55Speaker 01

  job duties, that speech is not protected by the First Amendment, even if it exposes corruption or misconduct. This is Five to Four, a podcast about how much the Supreme Court sucks.

• 1:18Speaker 01

  Welcome to Five to Four, where we dissect and analyze the Supreme Court cases that have rat-fucked our nation like the media is trying to rat-fuck Zoran Mamdani. I'm Peter. I'm here with Michael.

• 1:29Michael Liroff?

  Hey, everybody.

• 1:30Speaker 01

  And Rhiannon.

• 1:31Speaker 03

  Hello. Big election coming up.

• 1:33Michael Liroff?

  Election Day. Don't forget to vote.

• 1:36Speaker 01

  Election Day, as this drops, don't forget to vote for Andrew Cuomo lest we all fall under Sharia law, folks.

• 1:47Michael Liroff?

  I'm a Sliwa diehard. Sliwa, Sliwa? How's it pronounced? I don't know.

• 1:52Speaker 01

  I believe it's Sliwa, although, yeah, I've never really known.

• 1:56Michael Liroff?

  If you want someone-

• 1:58Speaker 03

  And he doesn't want you to know.

• 1:59Michael Liroff?

  -to finish Eric Adams' job of reading New York of rats, it's gotta be the guy with, like- 500 cats, right? That's the guy.

• 2:07Peter Shamshiri?

  He could do it himself.

• 2:08Speaker 03

  Oh, is he a cat guy?

• 2:10Peter Shamshiri?

  Well, that's, he's got 20. In like a studio apartment. So it's not, it's not like in a cute way.

• 2:16Michael Liroff?

  I would say it goes beyond being a cat guy into something.

• 2:20Speaker 03

  What a special race. What a special slate of elected officials you have here.

• 2:27Peter Shamshiri?

  Yeah. There will probably be more in the last week, but as we're recording, the most recent attempted smear on Zoran 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.

• 2:47Michael Liroff?

  His dad's cousin.

• 2:49Peter Shamshiri?

  Got him.

• 2:51Peter Shamshiri?

  Busted.

• 2:52Michael Liroff?

  And they did it like they, they ran it like it was a huge scandal. Like what Zoran doesn't want you to know. It wasn't his aunt.

• 3:00Speaker 03

  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?

• 3:09Michael Liroff?

  Oh, yeah.

• 3:09Peter Shamshiri?

  Yeah. Because the proper terminology is cousin once removed.

• 3:14Speaker 03

  Right.

• 3:15Michael Liroff?

  That's right.

• 3:15Peter Shamshiri?

  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? And I had to like, look it up.

• 3:26Speaker 03

  Yeah.

• 3:27Michael Liroff?

  Yeah.

• 3:27Peter Shamshiri?

  Because who the fuck says that? Who the fuck says cousin once removed?

• 3:30Speaker 03

  Right. And the cousin's probably going to call you uncle, right? Like this is ridiculous.

• 3:34Peter Shamshiri?

  That is what I insisted. No one says cousin once removed. It's like something you'd put in a court document.

• 3:38Michael Liroff?

  I have multiple friends whose kids call me uncle, who are not related by blood at all.

• 3:44Speaker 03

  This is so stupid.

• 3:45Peter Shamshiri?

  Yeah, right. No, no one uses terminology other than uncle, uh, whatever in this context.

• 3:54Peter Shamshiri?

  All right. Today's case, Garcetti v. Sabaos. This is a case from 2006 about free speech, specifically free speech for government employees. Richard Sabaos 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.

• 4:23Peter Shamshiri?

  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? He engaged in speech by writing this memo and now the government, his employer, is retaliating against him. First Amendment violation, right?

• 4:45Speaker 03

  Yeah.

• 4:46Peter Shamshiri?

  Wrong idiot.

• 4:47Speaker 03

  Open and shut. Oh, sorry. My bad.

• 4:50Peter Shamshiri?

  I tricked you.

• 4:51Speaker 03

  Back to law school. Back to law school for her.

• 4:56Peter Shamshiri?

  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

• 5:32Speaker 03

  Yeah.

• 5:32Peter Shamshiri?

  for the Trump administration. We did INS v. Lopez Mendoza and now this is in the same tradition.

• 5:39Speaker 03

  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, I'm getting deep.

• 6:11Peter Shamshiri?

  Drama in the pig pen?

• 6:14Speaker 03

  Some shit slinging in the pigpen, you're saying? Oh, I'm watching, okay? All right, so in 1998, Richard Sabios 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. 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.

• 6:58Speaker 03

  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. So Richard Sabios 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

• 7:41Speaker 03

  at do the facts that the sheriff talks about, the description of the location, does that actually match this place in real life? And so Richard Sabios, 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. Sabios, 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. And so what

• 8:26Speaker 03

  does Sabios 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 is lying, right? That cleared up nothing. So Richard Sabios 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

• 9:10Speaker 03

  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. 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 Sabios, his two supervisors in the prosecutor's office, the deputy sheriff himself, Lion 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 Sabios for how he's handling things. And in the end, Sabios's supervisors in the DA's office, they decide, we're not going to dismiss the case. We're still going to move forward.

• 9:55Speaker 03

  We're still going to prosecute this case. Lion pigs. So now, that doesn't actually end the story and Sabios's involvement in sort of, you know, raising a flag. I would say this is pretty unique. Richard Sabios 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-exam- All of the witnesses and Richard Sabios 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.

• 10:38Speaker 03

  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 Sabios testified for the defense here. Now, the criminal case proceeded, but at this point, of course, we're focused on Richard Sabios and his case that gets to the Supreme Court. And it's at this point, after Richard Sabios has investigated, has recommended that this case be dismissed. There's been a heated meeting with officials from the sheriff's office and Richard Sabios has testified as to his findings. Sabios is subjected at this point to what he says are, you know, really clearly retaliatory employment actions. His supervisors in the DA's office are punishing him, he says, for doing, for doing his job

• 11:22Speaker 03

  and honestly, for doing his job the right way, the way you would want a prosecutor to do it, but whatever. And so Sabios 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, Sabios was denied for that promotion. 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. Sabios 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.

• 12:06Speaker 03

  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.

• 12:17Peter Shamshiri?

  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. 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.

• 13:01Speaker 03

  Yeah, pretty nuanced, pretty nuanced constitutional question, actually.

• 13:05Michael Liroff?

  It's a nuanced question, which I think calls for nuanced answer, which is precisely what the majority does not give us here, which is the problem with it.

• 13:14Speaker 03

  Exactly.

• 13:15Peter Shamshiri?

  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. 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.

• 13:57Peter Shamshiri?

  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.

• 14:10Speaker 03

  Yeah, and at this point, there is Supreme Court jurisprudence about government employee's 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, right? 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.

• 14:50Peter Shamshiri?

  So the majority is written by Anthony Kennedy, rest in peace. Fingers crossed. 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?

• 15:12Speaker 03

  Yeah.

• 15:12Peter Shamshiri?

  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 Sabios' little memo here and his testimony, that's all unprotected because it was put together as part of his job. 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.

• 15:56Peter Shamshiri?

  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.

• 16:09Speaker 03

  Yeah.

• 16:10Peter Shamshiri?

  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.

• 16:18Speaker 03

  Yeah.

• 16:18Peter Shamshiri?

  Right? 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.

• 16:27Speaker 03

  So that would be like pickering, right? The teacher writing an op ed.

• 16:31Peter Shamshiri?

  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.

• 17:15Peter Shamshiri?

  The government can quote, encourage its employees to voice concerns privately by instituting internal policies and procedures that are receptive to employee criticism.

• 17:26Speaker 03

  Okay.

• 17:28Peter Shamshiri?

  It's like, but why would they do that when you just held that legally they don't have to?

• 17:32Michael Liroff?

  Yeah, that's exactly backwards about how incentives work.

• 17:35Peter Shamshiri?

  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.

• 17:49Speaker 03

  The policies that were in place and that Sabios 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?

• 18:05Peter Shamshiri?

  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.

• 18:15Michael Liroff?

  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.

• 18:35Speaker 03

  Exactly.

• 18:36Michael Liroff?

  Right. If they had any interest in creating such a path, this case wouldn't exist.

• 18:41Peter Shamshiri?

  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.

• 18:48Michael Liroff?

  That's black letter Supreme Court law, that a statutory avenue cannot replace a constitutional right.

• 18:54Peter Shamshiri?

  Right. I mean, but they're, they're just saying like, well, what if instead of a constitutional right?

• 18:59Michael Liroff?

  Yeah.

• 19:00Peter Shamshiri?

  What if they just did it on their own?

• 19:02Speaker 03

  What if your boss is just cooler with being criticized and maybe your boss likes it sometimes instead?

• 19:10Peter Shamshiri?

  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.

• 19:22Peter Shamshiri?

  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.

• 19:31Michael Liroff?

  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?

• 19:43Speaker 03

  Yeah.

• 19:43Michael Liroff?

  Like, that was-

• 19:44Speaker 03

  That's their bread and butter.

• 19:45Michael Liroff?

  A direct quote. That's their thing, man.

• 19:48Speaker 03

  Yeah, their thing 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.

• 20:27Peter Shamshiri?

  And like any other, like any other job, right?

• 20:30Speaker 03

  Yeah.

• 20:30Peter Shamshiri?

  They want, they want government service to be like any other job.

• 20:34Speaker 03

  Depoliticized, corporatized, essentially.

• 20:38Peter Shamshiri?

  Right. And I think you could envision a world where it's like a different type of job, right? Where like the relationship between the employee and employer is just different than it is in the private sector.

• 20:50Speaker 03

  And the point of the job, the public good that you want out of the fucking job, you know?

• 20:56Peter Shamshiri?

  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? Like, this was like a performance issue. His analysis was so bad that this was a performance issue.

• 21:30Speaker 03

  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.

• 21:42Peter Shamshiri?

  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, where he is terrible at his job and is sort of acting out. But it seems, like, at a glance, very suspicious.

• 22:21Speaker 03

  Yeah.

• 22:21Michael Liroff?

  Yeah.

• 22:36Michael Liroff?

  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. Like, 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."

• 23:02Speaker 03

  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.

• 23:11Peter Shamshiri?

  Yeah.

• 23:11Michael Liroff?

  I mean, even though it's only a couple of paragraphs, he does make a point that I think was missing from at least Suter's dissent, which is the principal dissent. It's signed on to by Ginsburg and Stevens, Breyer's kind of written 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, to voice their concerns publicly before they talk to their supervisors.

• 23:37Speaker 03

  Yeah.

• 23:37Michael Liroff?

  Right? That you're more protected writing an op ed than you are writing a memo to your boss.

• 23:43Speaker 03

  Yeah. Don't you want the prosecutor, like the, you know, the deputy, the line prosecutors to be bringing these concerns to the supervisors first internally at the DA's office?

• 23:52Michael Liroff?

  Yeah, it's, 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.

• 24:00Peter Shamshiri?

  Yeah.

• 24:01Speaker 03

  Good point.

• 24:02Peter Shamshiri?

  Yeah. I mean, it's, it's a strong point and like, yeah, it's, the incentives here are just all fucked up.

• 24:07Speaker 03

  Yeah.

• 24:08Peter Shamshiri?

  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.

• 24:22Speaker 03

  Right, right.

• 24:23Michael Liroff?

  Right.

• 24:23Peter Shamshiri?

  Frame it as a performance issue.

• 24:25Speaker 03

  Mm hmm, mm hmm.

• 24:26Michael Liroff?

  So Suter, 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, 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. It smells really bad. Doesn't really pass the constitutional muster there.

• 25:01Speaker 03

  Yeah.

• 25:01Michael Liroff?

  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.

• 25:10Speaker 03

  Right.

• 25:11Michael Liroff?

  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. 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,

• 25:56Michael Liroff?

  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. 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, like we said, it's, 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 Givon case, which was about a public school teacher who complained to the principal about discriminatory hiring practices.

• 26:38Michael Liroff?

  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.

• 26:52Speaker 03

  Right. Hiring isn't the teacher's job duties.

• 26:54Michael Liroff?

  Right. And so his point is like, it's insane that a school teacher 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.

• 27:10Speaker 03

  Duties are to hire.

• 27:11Michael Liroff?

  Yeah. Yeah. Is muzzled.

• 27:13Peter Shamshiri?

  Again, another just like weird absurdity that this framework creates, even though it seems simple on its face, right?

• 27:19Speaker 03

  Right.

• 27:19Peter Shamshiri?

  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.

• 27:38Speaker 03

  Yeah.

• 27:39Peter Shamshiri?

  Why? It doesn't, it just doesn't make any real sense.

• 27:42Michael Liroff?

  No, it's exactly backwards.

• 27:43Speaker 03

  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

• 28:25Speaker 03

  apply at least sometimes in these situations. 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?

• 29:07Speaker 03

  This isn't just any employee talking in the way their job duties mandate that they talk.

• 29:15Speaker 03

  Briar says, actually, this is a lawyer's speech. And not that lawyers are special, special, but stay with me. Lawyer's speech is sometimes ruled by ethical rules. What Briar calls like canons of the profession. Like, there are other rules that mandate lawyer's 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. Right. 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.

• 29:59Speaker 03

  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 Subias says in this case. 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, Subias 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 Briar says, these kinds of like overlapping rules,

• 30:39Speaker 03

  constitutional rules, professional, ethical, they exist because the job of a lawyer in this case, right? 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 Subias 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. And Briar concludes, the First Amendment should apply.

• 31:20Speaker 03

  It's so important that the First Amendment should protect Subias 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 Briar 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 got to 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.

• 32:00Michael Liroff?

  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.

• 32:40Speaker 03

  If you know somebody has lied legally, you have to say something.

• 32:45Michael Liroff?

  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 suborn perjury is not protected. That's nuts. That's nuts.

• 33:10Peter Shamshiri?

  Right. You have an ethical obligation to call this shit out, right? If you know someone to be perjuring yourself.

• 33:15Michael Liroff?

  You could arguably be disbarred for not doing it. Like,

• 33:19Peter Shamshiri?

  Right. So the, what the court is saying here, I guess, is like, but if you get it wrong, you're cooked. Like, if you guess wrong, you're fucking toast, buddy. You're 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?

• 34:01Peter Shamshiri?

  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.

• 34:39Speaker 03

  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 a 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

• 35:22Speaker 03

  expect to overthrow the most bloodthirsty, profit-driven, mad organization in the history of the world, that of the United States?"

• 35:29Peter Shamshiri?

  Classic lefty post.

• 35:31Speaker 03

  Yeah.

• 35:31Peter Shamshiri?

  He's mad at the left, but also talking about overthrowing the United States government at the same time.

• 35:37Speaker 03

  Right. And he's, he calls the, he was bloodthirsty, profit-driven, mad. And he got fired for it.

• 35:43Peter Shamshiri?

  Can't say that. Can't say that. No. No. You better salute that flag, buddy.

• 35:48Speaker 03

  Thomas Alter. Sued, of course, saying his First Amendment rights were being infringed because 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."

• 36:31Speaker 03

  So this is really like an ongoing, you know, people are losing their jobs right now.

• 36:35Michael Liroff?

  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. But 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, uh, yeah, you've got, you've 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.

• 37:16Speaker 03

  Exactly.

• 37:17Peter Shamshiri?

  And I think a big picture problem with the majorities framework here is they don't account for what a bad faith actor would do.

• 37:26Speaker 03

  Exactly.

• 37:27Peter Shamshiri?

  When we were talking about INS v. Lopez Mendoza a couple of weeks ago, it was the same thing where the court is just sort of like, well, we know that the government...

• 37:41Peter Shamshiri?

  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. Zabios himself, almost certainly the target of, of bosses who just don't like the cut of his jib here, right? They're like, he's a little too, little too mouthy. 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 6th prosecutions, right?

• 38:26Peter Shamshiri?

  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 6th, you have been, to this point, at high risk of losing your job. So there were just a couple of prosecutors who were put on leave after filing a sentencing memo. I'm going to read from this ABC News story here. "Toronto was pardoned by President Donald Trump over his involvement in the January 6th 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

• 39:07Peter Shamshiri?

  was found in possession of two guns and hundreds of rounds of ammunition, as well as a machete. A day before Toronto's arrest, he claimed he would use a car bomb to drive into the National Institute of Standards and Technology." Jesus. What a narrow, what a niche government beef.

• 39:27Michael Liroff?

  Yeah, I was gonna say, it's like, the meter's too long.

• 39:32Peter Shamshiri?

  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 Toronto was accused of participating in the riot in Washington DC by entering the US Capitol Building. After the riot, Toronto 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

• 40:12Peter Shamshiri?

  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?

• 40:21Speaker 03

  They don't like it.

• 40:22Peter Shamshiri?

  You can't be 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.

• 40:36Speaker 03

  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. So Governor Greg Abbott, a couple of 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,

• 41:17Speaker 03

  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."

• 41:47Speaker 03

  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, 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 boundary.

• 42:14Peter Shamshiri?

  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?

• 42:25Speaker 03

  You would think.

• 42:26Peter Shamshiri?

  No, 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?

• 42:49Michael Liroff?

  Correct.

• 42:50Peter Shamshiri?

  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.

• 43:00Michael Liroff?

  Yeah.

• 43:01Peter Shamshiri?

  I think it's, 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.

• 43:26Speaker 03

  They're going to.

• 43:26Peter Shamshiri?

  The power is right there for them.

• 43:27Speaker 03

  Exactly.

• 43:28Michael Liroff?

  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.

• 43:47Peter Shamshiri?

  Yeah.

• 43:48Michael Liroff?

  In March of this year.

• 43:49Peter Shamshiri?

  That's definitely what's happening, by the way.

• 43:51Michael Liroff?

  Yes.

• 43:51Peter Shamshiri?

  Is young people are loving America more and more now. That's what's happening.

• 43:55Speaker 03

  Because of Trump.

• 43:56Peter Shamshiri?

  You fucking dipshit, dude.

• 43:58Michael Liroff?

  Yeah.

• 43:58Peter Shamshiri?

  You old ass dipshit. Time to, uh, just, time to walk out of your Nantucket household, straight out into the ocean, brother. It is time. Embrace Poseidon, dude. Go hunting for Atlantis.

• 44:18Peter Shamshiri?

  Next week, United States v. Therasa Giam 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 at 54pod. Subscribe to our Patreon, patreon.com/54pod, 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.

• 44:52Michael Liroff?

  Bye, everybody.

• 44:53Speaker 03

  Bye.

• 45:05Michael Liroff?

  Five to Four is presented by Prolog Projects. This episode was produced by Dustin DeSoto. Leon Neefac 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/54pod.

• 45:41Peter Shamshiri?

  20-year-olds right now, 20-year-olds hate America like too much. I'm like, 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? Yeah. You gotta read a lot first, and then, and then you've earned it.