COURT HEARS FREE-SPEECH ISSUE.

Byline: Lisa Friedman Washington Bureau

WASHINGTON - The U.S. Supreme Court heard arguments Wednesday in a First Amendment case stemming from a claim of retaliation in the Los Angeles District Attorney's Office, which could determine whether the job-related speech of the nation's 20 million public employees is protected.

In an hourlong session, justices considering Garcetti v. Ceballos sought a middle ground in the central question of whether a public employee's on- the-job speech - in this case, a memo - is protected under the Constitution.

If the justices ultimately decide the answer is no, some experts warn that government employees who want to blow the whistle on corruption and malfeasance will have no weapon against retaliation.

If the answer is yes, government agencies worry that employees will have near-total immunity against discipline or firing and will deluge the courts with lawsuits.

``Job-required speech should not be protected by the First Amendment,'' argued attorney Cindy S. Lee of Glendale on behalf of the Los Angeles District Attorney's Office, formerly headed by Gil Garcetti.

The case pits various free-speech advocates and Deputy District Attorney Richard Ceballos - who now works in the downtown central trials division - against the District Attorney's Office, the Bush administration and a broad coalition of municipal governments.

It hinges on the actions of Ceballos, who in 2000 informed his supervisors that he thought a deputy sheriff had lied in an affidavit used to obtain a search warrant. His supervisors nevertheless decided to prosecute the case.

Ceballos then informed the defense about the investigation, and testified during a hearing on a motion to dismiss the case. The judge allowed the case to proceed.

Ceballos maintained he was demoted, transferred and threatened because of his actions.

On Wednesday, Lee and Bush administration attorney Dan Himmelfarb argued that because Ceballos' job was to assess cases going to trial, his memo was not protected under the First Amendment. Only speech made as a citizen on a matter of public interest, they maintained, is constitutionally safeguarded.

But Bonnie Robin-Vergeer, arguing for Ceballos, said the line between citizen and employee is ``malleable,'' and maintained Ceballos was writing his memo to the government, not for the government.

Noting that about 100 cases involving job-related internal communications are brought each year in federal court, she called the fear of a lawsuit deluge unfounded.

Moreover, Robin-Vergeer said, the public will pay the price if government employees felt cowed into keeping quiet about workplace problems.

``Imagine a FEMA employee who thinks FEMA is not prepared for the next hurricane'' and is fired for writing a memo outlining those concerns, she argued. ``It is intrinsically important for a public employee who knows what ails the agency to have an avenue.''

Justices struggled for ways to protect both employers and free speech.

``Is there any middle approach that gives discretion to the government but doesn't let them exceed that in a certain case?'' Justice Stephen Breyer asked, noting, ``a government has to have some authority to discipline a person.''

Added Justice Anthony Kennedy, ``Are there some matters where the employer can protect its interests?''

Chief Justice John Roberts, presiding over his seventh case since the U.S. Senate approved his nomination, posed hypothetical situations to both sides.

He wondered about the rights of a university professor who was fired for a lecture, and even his own right to fire a clerk who ``says Justice so-and-so's jurisprudence is wacky.''

After the hearing, Ceballos said he didn't sense the court leaning clearly to either side and he maintained that the public good is at stake in the decision.

Lisa Friedman, [phone]

lisa.friedman(at)langnews.com