Justices narrow First Amendment protections for government whistleblowers

The U.S. Supreme Court narrowed First Amendment protections for government-employee whistleblowers in a decision issued May 30.  The Court’s 5-4 ruling in Garcetti v. Ceballos exposed continuing sharp disagreement over an issue that has confounded the Court for years.

In the whistleblower decision, Justice Anthony Kennedy, writing for the majority, said, “[W]hen 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.” The ruling was a victory for former Los Angeles District Attorney Gil Garcetti, who was sued by a deputy, Richard Ceballos. Ceballos claimed he was punished for revealing misrepresentations in a sheriff’s affidavit in a pending case. His supervisors proceeded with the prosecution in spite of Ceballos’ claims, and Ceballos was called as a defense witness.

The 9th U.S. Circuit Court of Appeals sided with Ceballos, ruling that his allegations of wrongdoing were protected by the First Amendment. But the high court reversed the ruling.

The case was argued twice before the Supreme Court, first while former Justice Sandra Day O’Connor was in office and again in March after Justice Samuel Alito Jr. took her place. Alito provided the fifth vote against Ceballos.

Kennedy’s ruling, while siding with Garcetti, said government employees do retain some First Amendment rights as citizens, and he noted the existence of state and federal whistleblower protection laws.

But dissenting justices said Kennedy’s opinion draws lines illogically and will be difficult to implement. Justice John Paul Stevens said, “It is senseless to let constitutional protection for exactly the same words hinge on whether they fall within a job description.” Stevens also said the ruling could give employees the incentive to air their concerns publicly — with some First Amendment protection — before going to their superiors with the same concerns. Justices David Souter, Ruth Bader Ginsburg and Stephen Breyer also dissented.

To read full text of this decsion go to: U.S. Supreme Court Recent decisions of the U.S. Sup. Ct.Slip Opinions – then select slip opinions, and then select
Garcetti v. Ceballos

No. 04–473. Argued October 12, 2005—Reargued March 21, 2006—Decided May 30, 2006
Respondent Ceballos, a supervising deputy district attorney, was asked by defense counsel to review a case in which, counsel claimed, the affidavit police used to obtain a critical search warrant was inaccurate. Concluding after the review that the affidavit made serious misrepresentations, Ceballos relayed his findings to his supervisors, petitioners here, and followed up with a disposition memorandum recommending dismissal. Petitioners nevertheless proceeded with the prosecution. At a hearing on a defense motion to challenge the warrant, Ceballos recounted his observations about the affidavit, but the trial court rejected the challenge. Claiming that petitioners then retaliated against him for his memo in violation of the First and Fourteenth Amendments, Ceballos filed a 42 U. S. C. §1983 suit. The District Court granted petitioners summary judgment, ruling, inter alia, that the memo was not protected speech because Ceballos wrote it pursuant to his employment duties. Reversing, the Ninth Circuit held that the memo’s allegations were protected under the First Amendment analysis in Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U. S. 563, and Connick v. Myers, 461
U. S. 138.
Held: When 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. Pp. 5–14.
(a) Two inquiries guide interpretation of the constitutional protections accorded public employee speech. The first requires determining whether the employee spoke as a citizen on a matter of public concern. See Pickering, supra, at 568. 
High Court Trims Whistleblower Rights

By GINA HOLLAND, Associated Press Writer

Tuesday, May 30, 2006


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(05-30) 14:54 PDT WASHINGTON (AP) –
The Supreme Court scaled back protections for government workers who blow the whistle on official misconduct Tuesday, a 5-4 decision in which new Justice Samuel Alito cast the deciding vote.


In a victory for the Bush administration, justices said the 20 million public employees do not have free-speech protections for what they say as part of their jobs.


Critics predicted the impact would be sweeping, from silencing police officers who fear retribution for reporting department corruption, to subduing federal employees who want to reveal problems with government hurricane preparedness or terrorist-related security.


Supporters said that it will protect governments from lawsuits filed by disgruntled workers pretending to be legitimate whistleblowers.


The ruling was perhaps the clearest sign yet of the Supreme Court’s shift with the departure of moderate Justice Sandra Day O’Connor and the arrival of Alito.


A year ago, O’Connor authored a 5-4 decision that encouraged whistleblowers to report sex discrimination in schools. The current case was argued in October but not resolved before her retirement in late January.


A new argument session was held in March with Alito on the bench. He joined the court’s other conservatives in Tuesday’s decision, which split along traditional conservative-liberal lines.


Exposing government misconduct is important, Justice Anthony M. Kennedy wrote for the majority. “We reject, however, the notion that the First Amendment shields from discipline the expressions employees make pursuant to their professional duties,” Kennedy said.


The ruling overturned an appeals court decision that said Los Angeles County prosecutor Richard Ceballos was constitutionally protected when he wrote a memo questioning whether a county sheriff’s deputy had lied in a search warrant affidavit. Ceballos had filed a lawsuit claiming he was demoted and denied a promotion for trying to expose the lie.


Kennedy said if the superiors thought the memo was inflammatory, they had the authority to punish him.


“Official communications have official consequences, creating a need for substantive consistency and clarity. Supervisors must ensure that their employees’ official communications are accurate, demonstrate sound judgment, and promote the employer’s mission,” Kennedy wrote.


Stephen Kohn, chairman of the National Whistleblower Center, said: “The ruling is a victory for every crooked politician in the United States.”


Justice David H. Souter’s lengthy dissent sounded like it might have been the majority opinion if O’Connor were still on the court. “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,” he wrote.


Souter was joined by Justices John Paul Stevens and Ruth Bader Ginsburg. Justice Stephen Breyer also supported Ceballos, but on different grounds.


The ruling upheld the position of the Bush administration, which had joined the district attorney’s office in opposing absolute free-speech rights for whistleblowers. President Bush’s two nominees, Alito and Chief Justice John Roberts, signed onto Kennedy’s opinion but did not write separately.


“It’s a very frightening signal of dark times ahead,” said Tom Devine, legal director for the Government Accountability Project.


Employment attorney Dan Westman said that Kennedy’s ruling frees government managers to make necessary personnel actions, like negative performance reviews or demotions, without fear of frivolous lawsuits.


Ceballos said in a telephone interview that “it puts your average government employee in one heck of a predicament … I think government employees will be more inclined to keep quiet.”


Los Angeles County District Attorney Steve Cooley said in a statement that the ruling “allows public employers to conduct the people’s business without undue disruption and without turning routine personnel decisions into federal cases.”


The court’s decision immediately prompted calls for Congress to strengthen protections for workers.


Kennedy said that government workers “retain the prospect of constitutional protection for their contributions to the civic discourse.” They do not, Kennedy said, have “a right to perform their jobs however they see fit.”


The case is Garcetti v. Ceballos, 04-473.



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