The Supreme Court is set to hear rearguments in a key public employee free speech case, as announced in this ABA eReport piece. That’s not so odd, when new justices come on board. The facts concern a former attorney for the Los Angeles County District Attorney’s office:

Ceballos … sued his supervisors in October 2000 in federal court, contending they retaliated against him after he exposed false statements by a deputy sheriff in a search warrant affidavit. Ceballos alleged that after he wrote a memo to his supervisors advising the dismissal of an auto theft case, his supervisors demoted him and otherwise engaged in retaliatory actions against him.

A federal district court granted summary judgment to the defendants, reasoning they were entitled to qualified immunity because the memorandum was created "as part of his job." On appeal, the San Francisco-based 9th U.S. Circuit Court of Appeals reversed. Ceballos v. Garcetti, 361 F.3d 1168 (2004). In an opinion by Judge Stephen Reinhardt, the appeals court rejected "a per se rule that the First Amendment does not protect a public employee simply because he expresses his views in a report to his supervisors or in the performance of his other job-related obligations."

In a concurring opinion, Judge Diarmuid O’Scannlain said 9th Circuit precedent dictated the result, but called for the high court to "steer this court’s drifting First Amendment jurisprudence back to its proper moorings." O’Scannlain added that "the First Amendment, in short, does not protect public employees’ routine and required speech on behalf of the government."

But court observers are pressed to pinpoint exactly which issue led to the stalemate.

"The court never really indicated any reasons why reargument was called for," says First Amendment expert Robert O’Neil, who wrote an amicus brief in support of Ceballos on behalf of the Charlottesville, Va.-based Thomas Jefferson Center for the Protection of Free Expression and the American Association of University Professors. "It is not easy to identify what exact issue may have caused the reargument, but it is probable that there was a key issue in which Justice O’Connor’s vote was critical."

"Reargument is very uncommon over the past decade," says Supreme Court practitioner Tom Goldstein of Washington, D.C. "Chief Justice [William H.] Rehnquist almost always ensured that opinions were completed by the end of each term so that reargument wasn’t required. This is the unusual situation in which a tie vote requires reargument."

But it is not rare to have reargument "when a new justice arrives in the middle of a term and there are outstanding 4-4 cases," Lederman says. "For example, the court heard reargument in four or five cases when Justice Anthony Kennedy came on board in the middle of the 1987-88 term."

Nearly all eyes will be on Alito. "Of course, any justice can change his or her mind on reargument, but the parties to the case would be wise to presume that Justice Alito will determine the outcome," Lederman says. …

The Ninth Circuit’s opinion can be found here. For additional information, take a look at the Firs Amendment Center’s page on the case here (with transcripts, oral arguments, and other supporting documents).

EDITED – I did not originally intend to publish the entirety of the article. I do recall a few things from my Copyright class in law school. I’ve edited the post by taking down the remainder of the article.


In lieu of a roundup, I thought I’d switch focus this week to focusing on just one or two stories a bit more in depth. First up:

The Johnston County Airport is the site of protests over its involvement in storing planes allegedly used by the CIA to transport terrorism suspects overseas for torture. The story can be found here (link via Airport Business).

The protest centers around Aero Contractors, a company that’s leased land at Johnston County since the late 1970s. Earlier this year, the New York Times and CBS’s news show "60 Minutes" featured reports on the allegations that Aero Contractors was being used by the CIA to ferry prisoners and detainees to countries that practiced torture, presumably in order to circumvent laws preventing such methods of extracting intelligence in this country. The protest was met with the comment that this was an "old story … beat to death," by the company’s assistant general manager.

Assuming (and that’s a big assumption, I know) that the truth of the allegations could be proven, solely for the sake of argument, it’s doubtful any liability would attach to the airport operator, in my opinion. A case could theoretically be framed under Section 1983, but whether the lease of property could constitute sufficient state action is doubtful (and that’s assuming Article III standing could be proven, and assuming the party challenging the actions even had access to American courts).

The story also raises First Amendment issues. Some of the protesters were arrested for trespass. While individuals do have the right to protest under the First Amendment, generally speaking, that right is subject to many limitations in the context of airport terminals. Not only can reasonable safety and security measures be strictly enforced, there may be valid content-neutral time/place/manner restrictions in place as well. The right must also be balanced against the right of a private company to peaceably hold and enjoy its premises under its lease with the airport, although a constitutional right run smack up against private lease rights will probably result, without more, in favor of the constitutional right, of course. The exact location of the protest will matter, for instance, in the determination of whether the site is deemed a public or non-public forum; this will dictate the scope and breadth of the types of restrictions the governmental operator can adopt and enforce.

Interesting stuff for a Monday.