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
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
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,"
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.
"I don't think he's unleashed a wave of terminations," Westman said.
Washington lawyer Gene Schaerr, a former government attorney, said the ruling
keeps courts from meddling in the business of local governments. "It's
not the role of the First Amendment to be an all-purpose whistleblower law,"
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.
On the Net:
Supreme Court decision: http://www.supremecourtus.gov/opinions/05slipopinion.html