Supreme Court limits protections for government whistleblowe

Justices Set Limits on Public Employees' Speech Rights
I found the different enphasis in this article from the Knight-Ridder article above disturbing. This one does not emphasize as strongly the damage to whistle blower protection in the public interest.---BBB

May 30, 2006
Justices Set Limits on Public Employees' Speech Rights
By DAVID STOUT
WASHINGTON, May 30, 2006

The Supreme Court declared today, in a ruling affecting millions of government employees, that the Constitution does not always protect their free-speech rights for what they say on the job.

In a 5-to-4 decision, the court held that public employees' free-speech rights are protected when they speak out as citizens on matters of public concern, but not when they speak out in the course of their official duties.

Today's ruling, involving a deputy Los Angeles district attorney who contended that he had been denied a promotion for challenging the legitimacy of a search warrant, came in a case that has been closely watched not just by public workers but by those who have worried that it could discourage internal whistle-blowers from speaking up about government misconduct and inefficiency.

"We hold 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," Justice Anthony M. Kennedy wrote for the court.

The court's newest justice, Samuel A. Alito Jr., was in the majority as were Chief Justice John G. Roberts Jr., Justices Antonin Scalia and Clarence Thomas.

The ruling noted the enormous variety of factual situations involving relationships between public employers and their employees, and it suggested that the particular facts of a case must be closely examined.

In this case, the Los Angeles deputy prosecutor, Richard Ceballos, complained to his bosses in early 2000 that after being alerted by a defense lawyer, he had found "serious misrepresentations" in an affidavit used to obtain a search warrant.

Discussions with his superiors were heated, and a trial court rejected challenges to the warrant. In the aftermath, Mr. Ceballos contended, he was reassigned and denied a promotion. He filed an employee grievance, which was denied based on a finding that he had not suffered any retaliation, despite his claim to the contrary.

Mr. Ceballos took his case to federal district court, which threw it out after accepting his employer's argument that the actions Mr. Ceballos complained about were explainable by legitimate staffing needs. But the United States Court of Appeals for the Ninth Circuit reversed the lower court, concluding that Mr. Ceballos's free-speech rights had indeed been violated.

The case, Garcetti v. Ceballos, No. 04-473, was one of a long line of cases addressing the rights of public employees and surely not the last. When it was argued before the justices on Oct. 12, the Bush administration sided with Los Angeles County in arguing that if the Ninth Circuit were upheld, public employees would in effect get constitutional protection for performing their duties "to the dissatisfaction of the employer."

Employees who think they are unfairly treated should rely on Civil Service laws, Los Angeles County said.

Mr. Ceballos's lawyer argued unsuccessfully that the result the government lawyers were seeking would cause an unacceptable chilling of the speech of potential whistle-blowers. Justice Kennedy was skeptical of that position at the time. "You're saying that the First Amendment has a function within the government office," he said. "The First Amendment isn't about policing the workplace."

In writing the decision that reversed the Ninth Circuit today, Justice Kennedy noted that the Supreme Court has made it clear in previous rulings "that public employees do not surrender all their First Amendment rights by reason of their employment." On the other hand, he wrote, "When a citizen enters government service, the citizen by necessity must accept certain limitations on his or her freedom."

The controlling factor in this case, Justice Kennedy wrote, was that Mr. Ceballos was acting purely in an official capacity when he complained internally about the search warrant. "Ceballos wrote his disposition memo because that is part of what he was employed to do," Justice Kennedy wrote. "He did not act as a citizen by writing it."

To accept Mr. Ceballos's argument, the majority concluded, would be to commit state and federal courts to "a new, permanent and intrusive role" overseeing communications among government employees and their superiors.

Dissenting in three separate opinions were Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.

"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," Justice Stevens wrote. He said the majority ruling could have the "perverse" effect of giving public employees an incentive to speak out publicly, as citizens, before talking frankly to their superiors.

And Justice Souter asserted that "private and public interests in addressing official wrongdoing and threats to public health and safety can outweigh the government's stake in the efficient implementation of policy, and when they do public employees who speak on these matters in the course of their duties should be eligible to claim First Amendment protection."

Re: Justices Set Limits on Public Employees' Speech Rights

Maybe the damage isn't so strong. The court doesn't seem to say anything that would keep whistleblowers from going public and contributing to a public forum. If the government employs people, it has a right to oversee how they do their jobs. And if that job includes speaking and writing, the government can oversee what their can read and write in their official capacity. Here is what I consider the crucial part of the majority opinion.

We hold 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. Ceballos wrote his disposition memo because that is part of what he, as a calendar deputy, was employed to do. It is immaterial whether he experienced some personal gratification from writing the memo; his First Amendment rights do not depend on his job satisfaction. The significant point is that the memo was written pursuant to Ceballos' official duties. Restricting speech that owes its existence to a public employee's professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen. It simply reflects the exercise of employer control over what the employer itself has commissioned or created. Cf. Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819, 833 (1995) ("[W]hen the government appropriates public funds to promote a particular policy of its own it is entitled to say what it wishes"). Contrast, for example, the expressions made by the speaker in Pickering, whose letter to the newspaper had no official significance and bore similarities to letters submitted by numerous citizens every day. Ceballos did not act as a citizen when he went about conducting his daily professional activities, such as supervising attorneys, investigating charges, and preparing filings. In the same way he did not speak as a citizen by writing a memo that addressed the proper disposition of a pending criminal case. When he went to work and performed the tasks he was paid to perform, Ceballos acted as a government employee. The fact that his duties sometimes required him to speak or write does not mean his supervisors were prohibited from evaluating his performance.

I agree with Henderson that "[t]he Supreme Court made life a bit tougher for government whistleblowers Tuesday", but the operative words are "a little".