Whistleblower protection overruled

[Johnny Coli]

The Supreme court reversed a ruling today that gave First Amendment protection to government whistleblowers. Alito cast the deciding vote.

Jurist

The US Supreme Court on Monday held that First Amendment protections do not extend to government employees for comments made while performing their official duties, even when the employee is acting to expose alleged government wrongdoing. In a 5-4 decision in Garcetti v. Ceballos, the Court overturned a Ninth Circuit ruling which had extended free speech protections to a memorandum written by an employee in the Los Angeles District Attorney's office in which he argued that a sheriff lied in a search warrant affidavit, saying the memorandum should be protected because it was a matter of public concern. The employee, Ceballos, claimed he was retaliated against after he testified for the defense and submitted the memorandum he had written to the deputy District Attorney outlining the sheriff's misrepresentations. As a defense to the retaliation lawsuit, Ceballos' employers argued that the memorandum should not be entitled First Amendment protections because it was written in Ceballos' job-related capacity and not as his capacity as a citizen.

 

(emphasis mine)

 

SCOTUSblog has a pretty decent analysis of the opinion. In sum, and someone with more of a legal background should definately weigh in here, whistleblowers (and I believe this applies primarily to government employees wrt this opinion) are not protected from employer discipline by the First Amendment because exposing potential wrongdoing is considered speech in an official capacity and therefore free speech does not apply.

Today, the Court took that very signifiant step, holding that "when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline." This apparently means that employees may be disciplined for their official capacity speech, without any First Amendment scrutiny, and without regard to whether it touches on matters of "public concern" -- a very significant doctrinal development.

 

FindLaw weighed in on this case a month ago and how it might be relevant to the firing of CIA analyst Mary McCarthy, who has been accused of leaking information about "secret American-run terrorist detention centers in Europe" to the press.

Against this backdrop, it is folly to say that the current spate of leaks are merely acts of partisan politics. They are far better characterized as acts of desperation - and of conscience -- by frustrated public servants, and symptoms of a political system fraying at the edges.

 

[snip]

 

This is not to say that government officials should be allowed to leak with impunity. Of course, they should not. It is only to say that, generally speaking, aggressive criminal investigations of truly conscience-inspired leakers, and the reporters who only do their jobs by listening to them, will exacerbate a systemic imbalance in favor of secrecy and against dissent - one that is already disserving this country.

 

 

However, what still is protected as free speech is pursuing a more public route, for example via a letter to a newspaper rather than going through internal channels, but The Court speaks to this scenario as well....more from SCOTUSblog:

Second, the practical concern is overstated, according to the Court, because if "a government employer is troubled by the perceived anomaly, it has the means at hand to avoid it. A public employer that wishes to encourage its employees to voice concerns privately retains the option of instituting internal policies and procedures that are receptive to employee criticism. Giving employees an internal forum for their speech will discourage them from concluding that the safest avenue of expression is to state their views in public."

 

So, if I am interpreting this correctly (legal people please comment), if the employer "requires" an employee, pursuant to their job, to disclose wrongdoing via an internal review, than any disclosure would be considered an action related to their job, and the First Amendment protection would not apply. This would be equally devastating to government employees whose only recourse is to go through an internal review because of the nature of the information they have.

 

Wow.

 

 

UPDATE: More from the AP

Dissenting justices said Tuesday that the ruling could silence would-be whistleblowers who have information about governmental misconduct.

 

"Public employees are still citizens while they are in the office," wrote Justice John Paul Stevens. "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."

 

In a separate dissent, Justice David H. Souter wrote: "private and public interests in addressing official wrongdoing and threats to health and safety can outweigh the government's stake in the efficient implementation of policy."

 

[snip]

 

The Bush administration had urged the high court to place limits on when government whistleblowers can sue, arguing that those workers have other options, including the filing of civil service complaints.

 

 

UPDATE II:

The Washington Post analysis is up...

The decision enhances the ability of governments at all levels to punish employees for speaking out, shielding officials in many instances from lawsuits for violating the right to free speech.

 

 

UPDATE III:

More insight from SCOTUSblog, highlighting the "Catch-22"-like insanity of today's majority opinion.

After Ceballos, employees who do know what they are talking about will retain First Amendment protection only if they make their complaints publicly without going through internal grievance procedures. Although the Court suggests that its decision will encourage the creation and use of such internal procedures, it will probably not have that effect. Note that if employees have obligations to settle disputes and make complaints within internal grievance procedures, then they are doing something that is within their job description when they make complaints and so they have no First Amendment protections in what they say. Hence employees will have incentives not to use such procedures but to speak only in public if they want First Amendment protections (note that if they speak both privately and publicly, they can be fired for their private speech). However, if they speak only publicly, they essentially forfeit their ability to stay in their jobs, first because they become pariahs, and second, because they have refused to use the employer's internal mechanisms for complaint (mechanisms which, if they used them, would eliminate their First Amendment rights). In short, whatever they do, they are pretty much screwed. So the effect of the Court's decision is to create very strong incentives against whistleblowing of any kind. (Another possible result of the case is that employees will have incentives to speak anonymously or leak information to reporters and hope that the reporters don't have to reveal their sources).

 

(emphasis mine)

 

Whooosh...there goes another protection...

Edited May 30, 2006 by Johnny Coli