SCOTUS to Whistleblowers: Drop Dead
Tue May 30, 2006 at 11:06:29 AM PDT
In a 5-4 decision today by the Supreme Court, whistleblowers were opened to greater punishment for speaking out. The Court held that "[w]hen public employees make statements pursuant to their official duties, they are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline."
Strictly speaking, constitutional freedoms are not guaranteed at the workplace. Hill staffers not in a Congressman's communications office rarely speak on the record for fear of losing their jobs. But when the issue is whistle blowing, there is a strong public policy interest in protecting employees from reprisals for speaking out.
As in a typical 5-4 decision, the "usual suspects" voted to curtail whistle blowing protections: Justice Kennedy delivered the majority opinion, and was joined by Chief Justice Roberts, as well as Justices Scalia, Thomas, and Alito. Justice Stevens filed a dissenting opinion, Justice Breyer filed a dissent, and Justice Souter filed a dissent which Justices Ginsburg and Stevens joined. More after the jump.
Los Angeles Deputy District Attorney Richard Ceballos was approached by a defense attorney who found significant inaccuracies in an affidavit used to obtain a search warrant. Ceballos investigated the attorney's claims and found that there were indeed serious inaccuracies. After not getting satisfaction from the sheriff's office, Ceballos prepared a memorandum explaining his concerns and recommending the dismissal of the case. His memo was reviewed in a heated meeting between him, his sueprvisors, and representatives of the sheriff's department. Despite his recommendations, the prosecution went forward, and Ceballos testified under subpoena for the defense.
Predictably, Ceballos found himself denied a promotion, reassigned to a new courthouse, and had his responsibilities changed as well. He argued that the actions were retaliatory. The SCOTUS held, in part, "[r]efusing to recognize First Amendment claims based on government employees' work product does not prevent them from participating in public debate. The employees retain the prospect of constitutional protection for their contributions to the civic discourse. This prospect of protection, however, does not invest them with a right to perform their jobs however they see fit."
I would argue that this was not a man seeking to perform his job as he sees fit, but rather a man seeking protection from retaliation for doing the right thing. Today's ruling should be a chill to us all
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