Supreme Court Limits Whistleblower Protection

by TChris

The Supreme Court has long held that public employees do not have an unfettered First Amendment right to speak freely without fear of losing their jobs. In the past, the Court has protected employees who speak out on a matter of public concern (including blowing the whistle on governmental misconduct), but not when the employee speaks about private concerns. If the employee's speech addresses a public concern, the Court balances the employee's interest in speaking freely against the government's interest in avoiding disruption of the workplace. (Note: this is a simplified and necessarily incomplete summary of a complex body of law. To understand the two tests more fully, read Connick v. Myers and Pickering v. Board of Ed.)

The Court today added a new wrinkle to its analysis. In a 5-4 decision, the Court denied First Amendment protection to Los Angeles prosecutor Richard Ceballos, who "wrote a memo questioning whether a county sheriff's deputy had lied in a search warrant affidavit." Ceballos argued that he was "demoted and denied a promotion for trying to expose the lie." While this would seem to be a classic instance of whistleblowing -- the kind of speech by public officials that should be encouraged -- the Court held that Ceballos was discharging his official duties when he wrote the memo, and that he was not entitled to the same protections he would have had if he had been speaking out against the lie as a private citizen.

The decision is nonsense. Should Ceballos be entitled to less protection because he wrote a memo in the course of his official duties rather than calling a newspaper to disclose the lie? Justice Stevens exposes the fallacy of the majority's logic in his dissent:

[I]t is senseless to let constitutional protection for exactly the same words hinge on whether they fall within a job description. Moreover, it seems perverse to fashion a new rule that provides employees with an incentive to voice their concerns publicly before talking frankly to their superiors.

The case was reargued after Justice O'Connor left the Court, leaving Justice Alito to cast the deciding vote against protecting the whistle-blowing prosecutor. The other dissenters were Justices Souter, Ginsberg, and Breyer. The opinion is here (pdf).

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    Many small steps toward totalitarianism, and this is one. As is often said, put the frog in tepid water and gradually, gradually raise the temperature... Will the public ever wake up?

    Re: Supreme Court Limits Whistleblower Protection (none / 0) (#2)
    by scribe on Tue May 30, 2006 at 09:11:33 AM EST
    So, let me get this straight. If (a) I'm a public employee and (b) my employer decides "reporting wrongdoing" to my superior is a part of my job description and (c) I report wrongdoing to my superior and (d) my superior doesn't like my report, then (e) I can get fired for doing my job? But, if on the other hand (a) I'm a public employee and (b) my employer decides "reporting wrongdoing" to my superior is a part of my job description and (c) I report wrongdoing to, say, a blog or a newspaper and (d) my superior doesn't like my report, then (e) I can't get fired because what I did wasn't part of doing my job, but (f) I can probably get fired for not doing my job because I (1) should have reported the wrongdoing to my superior and (2) been fired for doing my job as described above? So, in other words, if what you report displeases the boss, you get canned, regardless.... Well, thank you Strip Search Sammy! What a wonderful means to bury criminality! I hear W's sending over a fruit basket.

    Re: Supreme Court Limits Whistleblower Protection (none / 0) (#3)
    by cpinva on Tue May 30, 2006 at 09:55:06 AM EST
    no one told me lewis carrol is now on the supreme court!

    Re: Supreme Court Limits Whistleblower Protection (none / 0) (#4)
    by oldtree on Tue May 30, 2006 at 11:06:27 AM EST
    todays indicator that fascism is in power, and we lose yet another one of our freedoms now it is against the law to show corruption and injustice for what it is, to tell the truth about justice would break the law. we are dreaming all this, right? impeachment also goes to inept justices, right?

    Lately I've been hearing a lot of murmuring that Roberts and Alito aren't so bad.... Hmmm.

    When I saw the headline, I said, 'likely yes: Alito, Roberts, Thomas, Scalia'. I don't know what we can do but to fight the next nomination battles all the harder, oppose the Federalist Society while trying to build mainstream foundations to counter them, etc.

    Justice Stevens, dissenting. 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," ante, at 1, is "Sometimes," not "Never." Of course a supervisor may take corrective action when such speech is "inflammatory or misguided," ante, at 11. But what if it is just unwelcome speech because it reveals facts that the supervisor would rather not have anyone else discover?** As Justice Souter explains, public employees are still citizens while they are in the office. The notion that there is a categorical difference between speaking as a citizen and speaking in the course of one's employment is quite wrong. Over a quarter of a century has passed since then-Justice Rehnquist, writing for a unanimous Court, rejected "the conclusion that a public employee forfeits his protection against governmental abridgment of freedom of speech if he decides to express his views privately rather than publicly." Givhan v. Western Line Consol. School Dist., 439 U. S. 410, 414 (1979). We had no difficulty recognizing that the First Amendment applied when Bessie Givhan, an English teacher, raised concerns about the school's racist employment practices to the principal. See id., at 413-416. Our silence as to whether or not her speech was made pursuant to her job duties demonstrates that the point was immaterial. That is equally true today, for it is senseless to let constitutional protection for exactly the same words hinge on whether they fall within a job description. Moreover, it seems perverse to fashion a new rule that provides employees with an incentive to voice their concerns publicly before talking frankly to their superiors. While today's novel conclusion to the contrary may not be "inflammatory," for the reasons stated in Justice Souter's dissenting opinion it is surely "misguided." More dissent at GARCETTI et al. v. CEBALLOS What is really scary is that Garcetti, the L.A. DA, would take this case that far. Why?

    I haven't read the opinion yet, but the very idea of drawing the public/private distinction when the matter at issue - a cop lying in a search warrant affidavit - strikes me as outrageous. That's not a matter of public concern? Since when? And what kind of supervisor punishes the person who raises the possibility instead of aggressively checking it out? Does the majority consider these behaviors - lying, covering it up, punishing those who object - just another day in the world of cops and prosecutors, not worthy of public scrutiny? Jeezus f***ng christ.

    Re: Supreme Court Limits Whistleblower Protection (none / 0) (#9)
    by scarshapedstar on Tue May 30, 2006 at 03:25:03 PM EST
    Wow, I can sleep so much safer tonight knowing that the government is more difficult to hold accountable. Remind me, uh, what do conservatives believe in exactly?

    Larry the Red, wanna bet if Alberto Gonzales filed a friend of the court brief in favor of this decision? Do we even need to ask why he would do that? Didn't Bush say leaks were as evil as the terrorists? Quite a slippery slope, and coincidentally, or not so coincidentally, a book on the subject is currently absorbing me: BEYOND BELIEF: The American Press & the Coming of the Holocaust 1933-1945. And now the imbedded reporters in Iraq make sense. Yeah, it sounds crazy, BEYOND BELIEF in fact. Now to go hunt down the alleged Gonzalez brief. Should be interesting reading if it exists.

    I'm not calling that bet!

    Ah, don't you hate when government repression is so obvious it isn't even neccssary to confirm it first? From the oral arguments: EDWIN S. KNEEDLER, ESQ., Deputy Solicitor General, Department of Justice, Washington, D.C.; for the United States, as amicus curiae, supporting the Petitioners. "Article II of the Constitution gives the President the power and responsibility to take care that the laws be faithfully executed... When the Government pays for somebody to do its work, it has an absolute right to control and direct the manner in which that work is performed." (PDF)

    Good call. It wasn't a fair bet anyway.

    The sad and troubling thing for those who are upset at this decision is that Justice Kennedy, el swing vote, wrote it. Kennedy has a history of being a strong supporter of free speech and the press. Thus, Orin Kerr in his blog has a trivia question respecting if he ever wrote the majority in such a 5-4 case where the Court rejected the 1A claim. As to the whistleblower safeguard offered by the opinion, current reality makes that almost silly.

    Re: Supreme Court Limits Whistleblower Protection (none / 0) (#15)
    by Che's Lounge on Tue May 30, 2006 at 04:12:42 PM EST
    Those on the inside are restricted because those on the inside have access. Sounds like a fascist wet dream. No wonder those traitors need loose robes. Thanks Sandra.

    Not being a lawyer, it is possible I misunderstood this decision, but... It seems they decided this case, at least on the surface, due to the potential federal court overload cases like this might bring, along with a Federalism stand. Also, at bottom, it seems the Feds are arguing it for different reasons. Namely, reading between the lines, that someone like Joe Wilson could have, should have, been fired long before the NY Times printed his OpEd piece claiming the justification for war was slippery at best. So now the Feds can hold the threat of dismissal over federal employees' heads, and even a hint of beating to a different drummer could get them fired, IF THEY SAY ANYTHING like that in the line of duty. If this is a possible interpretation, and I'm guessing that is how it will be applied, at least under Bush, Newspeak is at last official.

    People who do such things as Garcetti have done evil and ought to be removed from power. Those judges who have sustained his evil likewise ought to be removed.

    Re: Supreme Court Limits Whistleblower Protection (none / 0) (#18)
    by ntnelson on Wed May 31, 2006 at 07:57:27 AM EST
    With Alito on the court it looks like you liberals will now find out what its like to be angry with S.C. decisions. Welcome to my world the last 20-30 years. I even read a post on here suggesting that impeachment may be necessary. When us righties used to talk like that I seem to remember hearing the phrase "the independence of the judiciary is now under attack." So I now have to throw that comment back in your face and tell you lefties that you need to respect the independence of the judiciary. If you want things changed, go win some elections. Atleast right wing judges allow for changes to be made the democratic way. With liberals in control of the S.C., the only way we can achieve anything on the social issues front is by constitutional amendment. Therefore, you guys should consider yourselves fortunate that you have some way to effectuate change.

    sure, nt, we'll effectuate change the republican way, we'll steal elections

    Re: Supreme Court Limits Whistleblower Protection (none / 0) (#20)
    by squeaky on Wed May 31, 2006 at 09:21:00 AM EST
    With Alito on the court it looks like you liberals will now find out what its like to be angry with S.C. decisions.
    We will visit you in jail. If I were you I would make a regular donation to the ACLU you will need them. We are already the largest jailer in the world. Good thing Haliburton has gotten a huge contract to build some prison camps in the US. You can rest easy that your cell will not be overcrowded. That is if they do what they were paid to do this time instead of just pocketing the money. Haliburton is such a trusted contractor that they need no oversight. I suppose that is what they mean by a faith based economy.

    So fascism is just fine because the poor right babies were picked on for 20-30 years. Kind of sounds like the unfairness of the Treaty of Versailles. Bet you won't think it so cute if a Dem is president and starts firing anyone who even slightly voices a disagreement. It would be interesting, nt, to know which "liberal" Supreme Court decision was the worst for you. Which one captured your liberty and gave it to the state?

    you can pretty much guess what nt doesn't like, woman having a choice on what to do with their bodies, cause those conservatives like to be the "big daddys" who make that decision. But, nt also likes alito's style on strip searching 10 year old girls, without warrants.

    If the Congress were in the hands of Dems, we should ask them to pass a law specifically forbidding the conduct of Garcetti. Right now, the claim of the DA and the Administration is that, since the local or federal government pays the salary of an employee, they have complete control over what he says or does not say. Apparently this would perhaps include the government paying its employees to lie to the public. Read again this oral argument: "When the government pays someone to do its work, it has an absolute right to control . . . the manner that work is performed." OK, does that include the government paying employees to lie in order to advance certain policy objectives? Is that the claim the US government is making the US Supreme Court has sustained? Could the US government pay people to lie about global warming or to lie to the US public about another nation's WMDs? Is that "constitutional"? Certainly, it would be immoral and fails the Jeffersonian test re religion and taxes: that is wrong and immoral to tax a member of the public to pay for the spread of opinions in which he does not believe. Now, however, when it comes to lying for the government, that is the claim that they are making. And, together with lying for the government goes being silent with in the face of the knowledge of lying, incompetence, illegal activity or unconstitutional conduct. The government should never have such a "right," to pay people to lie for them or to be silent while in possession of clear knowledge of wrongdoing. How obviously immoral can the Reps and the US Supreme Court be, to agree with the assertion of such a right? And, in this case, Congress can and should, as soon as possible, pass legislation to strengthen the 1st amendment from the attacks of the fools and liars. For, Congress can criminalize the conduct of Garcetti and those who act like him.

    Re: Supreme Court Limits Whistleblower Protection (none / 0) (#24)
    by Avedon on Wed May 31, 2006 at 08:17:14 PM EST
    This is indefensible. As near as I can tell, this guy was punished for doing his job. This isn't even a free speech issue, it's an issue of properly serving the public.