Supreme Court limits free speech in public jobs

[WaTcHeR]

05.30.2006 - WASHINGTON - 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 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 Souter's lengthy dissent appeared to sound like 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.

[WaTcHeR]

watcher said:

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.

You notice it's a victory for the Bush administration and not the "American citizens." I think someone should be an end to this administration like real soon. Will another John Hinckley Jr. please step forward?

watcher said:

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.

How does this effect police? Ninety eight percent of cops don't have the balls to turn in a bad cop. The only time you see a cop reporting corruption, is when his own lame ass in on the line and he's about to go down.

[KC]

We can always expect the Supreme Court to side with the government, at least 99 out of 100 times. This is nothing new that hasn't been happening for the last 25 years or so.

[The Owl]

Below are key parts of the decision. This is hardly the government "victory" the MSM is generally making it out to be with their usual misreporting. But it is true that it has no real affect one way or another on corrupt LE as the blue conspiracy of silence keeps misconduct covered up better than the Mafia omerta.

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"The Court has made clear that public employees do not surrender all their First Amendment rights by reason of their employment. Rather, the First Amendment protects a public employee's right, in certain circumstances, to speak as a citizen addressing matters of public concern."

"The first requires determining whether the employee spoke as a citizen on a matter of public concern. If the answer is No, the employee has no First Amendment cause of action based on his or her employer's reaction to the speech. If the answer is Yes, then the possibility of a First Amendment claim arises."

"At the same time, the Court has recognized that a citizen who works for the government is nonetheless a citizen . The First Amendment limits the ability of a public employer to leverage the employment relationship to restrict, incidentally or intentionally, the liberties employees enjoy in their capacities as private citizens."

"So long as employees are speaking as citizens about matters of public concern, they must face only those speech restrictions that are necessary for their employers to operate efficiently and effectively." ("Our responsibility is to ensure that citizens are not deprived of fundamental rights by virtue of working for the government").

"The Court has acknowledged the importance of promoting the public's interest in receiving the well-informed views of government employees engaging in civic discussion."

"The Court's approach acknowledged the necessity for informed, vibrant dialogue in a democratic society. It suggested, in addition, that widespread costs may arise when dialogue is repressed."

"Were [public employees] not able to speak on [the operation of their employers], the community would be deprived of informed opinions on important public issues. The interest at stake is as much the public's interest in receiving informed opinion as it is the employee's own right to disseminate it" ("The large-scale disincentive to Government employees' expression also imposes a significant burden on the public's right to read and hear what the employees would otherwise have written and said").

"Underlying our cases has been the premise that while the First Amendment invests public employees with certain rights, it does not empower them to "constitutionalize the employee grievance."

"Employees in some cases may receive First Amendment protection for expressions made at work. Many citizens do much of their talking inside their respective workplaces, and it would not serve the goal of treating public employees like "any member of the general public," to hold that all speech within the office is automatically exposed to restriction."

"The controlling factor in Ceballos' case is that his expressions were made pursuant to his duties as a calendar deputy. That consideration—the fact that Ceballos spoke as a prosecutor fulfilling a responsibility to advise his supervisor about how best to proceed with a pending case—distinguishes Ceballos' case from those in which the First Amendment provides protection against discipline."

"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 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."

"Refusing 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."

"When an employee speaks as a citizen addressing a matter of public concern, the First Amendment requires a delicate balancing of the competing interests surrounding the speech and its consequences. When, however, the employee is simply performing his or her job duties, there is no warrant for a similar degree of scrutiny."

"Employees who make public statements outside the course of performing their official duties retain some possibility of First Amendment protection, because that is the kind of activity engaged in by citizens who do not work for the government."

"The perceived anomaly, it should be noted, is limited in scope: It relates only to the expressions an employee makes pursuant to his or her official responsibilities, not to statements or complaints that are made outside the duties of employment."

"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.

"Proper application of our precedents thus leads to the conclusion that the First Amendment does not prohibit managerial discipline based on an employee's expressions made pursuant to official responsibilities. Because Ceballos' memo falls into this category, his allegation of unconstitutional retaliation must fail.

"Exposing governmental inefficiency and misconduct is a matter of considerable significance. As the Court noted in Connick, public employers should, "as a matter of good judgment," be "receptive to constructive criticism offered by their employees." The dictates of sound judgment are reinforced by the powerful network of legislative enactments — such as whistleblower protection laws and labor codes—available to those who seek to expose wrongdoing.

[DP]

Head-scratching follows Garcetti ruling

By Tony Mauro
First Amendment Center legal correspondent
05.31.06
WASHINGTON — A day after the Supreme Court took a new direction in its First Amendment jurisprudence concerning public-employee speech, it is almost impossible to predict where the new path will lead.

In its 5-4 ruling yesterday in Garcetti v. Ceballos, the Court seemed definitively to place an entire category of speech outside the protection of the First Amendment: statements made by government employees in the course of their official duties.

But by also stating that government employees retain free-speech rights as citizens, and by giving a favorable nod to whistleblower-protection laws, the Court seemed to raise new questions and guarantee that this nettlesome area of law is far from settled, spawning a new generation of litigation.

“Refusing to recognize First Amendment claims based on government employees’ work product does not prevent them from participating in public debate,” wrote Justice Anthony Kennedy for the majority.

Among the questions the ruling leaves open: Will government employees be better off taking their complaints public first, instead of voicing their concerns to superiors? Did the Court really intend to embrace the notion that government workers should be protected least when they are speaking out about what they know the most, namely their own jobs? And should First Amendment protections turn on how a government job has been defined on paper, often a long-forgotten fiction?

“The Court seems to be saying that if you don’t know anything about a subject, you can speak freely about it,” said Robert O’Neil, director of the Thomas Jefferson Center for the Protection of Free Expression. “I don’t see this decision giving much guidance.”

And yet after yesterday's ruling, O’Neil and many other First Amendment advocates and analysts were left feeling that the high court had departed significantly from its traditional approach to government-employee speech, which included freedom of speech as one of the factors to be balanced in deciding whether an employee’s speech should be protected.

In its decision, the Court placed strong emphasis on the government interest in administrative efficiency and on “affording government employers sufficient discretion to manage their operations.” If it supported the whistleblower in the case, Kennedy wrote, the Court would “commit state and federal courts to a new, permanent, and intrusive role, mandating judicial oversight of communications between and among government employees and their superiors in the course of official business.”

Yale Law School professor Jack Balkin, writing on his Balkinization blog yesterday, said, “I am sympathetic to the Court's desire to reduce the burden of ad hoc balancing by creating a bright line rule of no protection. But in this case, the Court's decision doesn't really create a bright line rule, because the boundaries of what is within an employee's job description may turn out to be quite contestable, and will be contested in future cases.”

Balkin also said of government employees, “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.”

Steve Shaprio, national legal director for the American Civil Liberties Union, also said, “In an age of excessive government secrecy, the Supreme Court has made it easier to engage in a government cover-up by discouraging internal whistleblowing.”

In the case before the Court, Los Angeles Deputy District Attorney Richard Ceballos determined that an affidavit by a deputy sheriff in a pending case contained falsehoods. He complained to superiors, but they decided to proceed with the prosecution. Ceballos continued to voice concerns, and he was eventually called as a witness by the defense.

Though he was not prevented from testifying about the improper conduct, Ceballos claimed he was demoted and punished with "freeway therapy" by being assigned to a remote office with a long commute. The 9th U.S. Circuit Court of Appeals ruled that Ceballos deserved First Amendment protection, because his speech, which amounted to whistle-blowing about government misconduct, was about a matter of public concern.

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

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."

Kennedy's ruling, while siding with former District Attorney Gil Garcetti, said government employees do retain some First Amendment rights as citizens, and he noted the existence of state and federal whistleblower-protection laws. “Exposing government inefficiency and misconduct is a matter of considerable significance,” Kennedy wrote, adding that whistleblower-protection laws were available to employees who want to speak out.

He also noted that for government lawyers, teachers and university professors, professional codes of conduct and other considerations including academic freedom could provide safeguards for speaking out.

But the four dissenting justices said Kennedy's opinion draws illogical lines that would lead to more litigation. Justice John Paul Stevens wrote, "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.

“ government paycheck does nothing to eliminate the value to an individual of speaking on public matters, and there is no good reason for categorically discounting a speaker's interest in commenting on a matter of public concern just because the government employs him,” wrote Souter. “Still, the First Amendment safeguard rests on something more, being the value to the public of receiving the opinions and information that a public employee may disclose."

[KC]

The said:

Below are key parts of the decision. This is hardly the government "victory" the MSM is generally making it out to be with their usual misreporting. But it is true that it has no real affect one way or another on corrupt LE as the blue conspiracy of silence keeps misconduct covered up better than the Mafia omerta.

Hardly a victory for the government you say? It was a victory for employers "government" and not a victory for employees "U.S. Citizens." The simple fact is that the majority sided with those in charge, not the employees.

Who is ignorant enough to think the Supreme Court would side with the citizens of the country, over the government that put them on the bench? This case will do nothing more than make the government and police officers more corrupt than ever!

Yes it was a victory for the Nazi Bush administration. They of all people are very much against "whistleblowers." The only option left for whistleblowers is to go to the "press" and pass on information "leak," without disclosing their identity. President Wussy Bush seems to complain the most about "leakers."

Basically if you know of, or see an employer breaking the law and you speak up and complain, the Supreme Court has said that the employer can fire you and you can't sue. Now the only time you would be able to sue your employer is when lets say, the employer is breaking the law and the employer ask you to participate and you refuse and then the employer fires you, then you will have grounds for a law suit.

Now what gets me is lets say you see your employer doing something illegal and you don't say anything, for fear of losing your job. That employee has just became accessory to a crime and isn't allowed to notify the proper authorities, because the Supreme Court has said keep your mouth shut or lose your job.

[ALT]

Court limits First Amendment protection for public employees

Speech by government whistleblowers made in the course of official job duties is not protected by the First Amendment, the nation's highest court ruled.

June 2, 2006 · Speech by government whistleblowers made in the course of official job duties is not protected by the First Amendment, the nation's highest court ruled.

Drawing a stark line between what public employees say in the course of their job duties and what they say as concerned citizens, the U.S. Supreme Court on Tuesday limited First Amendment protection for whistleblowers.

Dissenters in the 5-4 decision said that the Court's ruling creates the peculiar situation in which the First Amendment would not protect a public employee reporting corruption to his supervisor but would protect him if he reported that same corruption outside his capacity at work, such as in a letter to the editor.

"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," Justice John Paul Stevens wrote in dissent.

Writing for the majority, Justice Anthony M. Kennedy said 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."

Chief Justice John G. Roberts Jr. and Justices Samuel A. Alito Jr., Antonin Scalia and Clarence Thomas joined Kennedy's opinion, which was issued after the Court allowed a second oral argument following Alito's appointment in January.

The case stems from a memo Richard Ceballos, a deputy district attorney in Los Angeles County, wrote to his supervisor in 2000 addressing concerns about an affidavit based on incorrect facts that a deputy sheriff used to obtain a warrant. Ceballos recommend the county drop the case because of the inaccuracies but was overruled by superiors. He also testified about the affidavit at a hearing, and in briefs told the U.S. Supreme Court that he was told he would suffer retaliation if said the affidavit contained lies, according to Justice David H. Souter's dissent, which was joined by Justice Ruth Bader Ginsburg.

Ceballos, forced to transfer to another office after the case, sued claiming the transfer was retaliation for writing the memo -- speech he argued is protected by the First Amendment. He lost in federal district court in Los Angeles but won on appeal to the U.S. Court of Appeals in San Francisco (9th Cir.). The Supreme Court agreed with the initial lower court ruling and ruled that as long as public employees are speaking as part of their official duties, as Ceballos was, the speech is not protected by the First Amendment.

What the Court did not acknowledge is that employees who blow the whistle on wrongdoing by going public may not receive constitutional speech protection, said attorney Bonnie Robin-Vergeer who represented Ceballos and argued the case before the Court.

When public employees speak as citizens addressing issues of public concern rather than as part of their official duties they will receive First Amendment protection only if the employees' free speech interests outweigh the employer's interest in a disruption-free workplace under the 1968 Supreme Court ruling in Pickering v. Board of Education.

The majority in Garcetti v. Ceballos did not leave room for employees acting both in their official duties and as concerned citizens to receive First Amendment protection, a position Justice Stephen G. Breyer endorsed in his dissent.

State and federal whistleblower laws may cover employees in some situations, according to the majority opinion, but Souter, in his dissent, said those laws are inadequate.

Robin-Vergeer said employees who circumvent internal office procedures and go to the media often violate office policies and fare poorly in court.

"Will they be more likely to talk to the press than before? I think that's a hard thing to predict," she said.

"It's going to affect people across the board, whether they're prosecutors or cops or whether they work in internal affairs," she said, adding that those affected include "people at [the Federal Emergency Management Agency] who come forward and say FEMA's not ready for the next hurricane."

Kennedy wrote for the majority that Ceballos was acting within his job duties when he wrote the memo that provoked the retaliation. Because that fact was not disputed, the majority also said, "We thus have no occasion to articulate a comprehensive framework for defining the scope of an employee's duties."

That question will be a sticking point for future litigation, Robin-Vergeer said, pointing out that investigating the sheriff's department was not within the official duties of a prosecuting attorney like Ceballos.

Souter cautioned that the opinion could limit First Amendment protection for public school teachers and university professors who speak and write as part of their official job duties. The majority opinion countered that the Court did not need to decide whether the same analysis would apply in an academic setting.

Potentially affecting the Court's ruling is the "Federal Employee Protection Disclosures Act,"

which would expand whistleblower protection for federal employees. The bill, sponsored by Sens. Daniel K. Akaka (D-Hawaii) and Susan Collins (R-Maine), passed a Senate committee in May.