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Some Whistle-Blowers
Lose Free-Speech Protections

LINDA GREENHOUSE / New York Times 31may2006

[Several other articles below]


WASHINGTON, May 30 The Supreme Court ruled on Tuesday that the Constitution does not protect public employees against retaliation by their supervisors for anything they say in the course of performing their assigned duties.

cartoon by john jonik

While the court's focus in the 5-to-4 decision was on disputes that remain within the workplace, the decision raised questions about the extent to which whistle-blowers who make their complaints public might now face a greater danger of retaliation.

Although several employee groups raised immediate alarms, Justice Anthony M. Kennedy's majority opinion in fact contained the counterintuitive implication that employees might fare better by speaking out as "citizens" and taking their complaints to the public rather than keeping them within the official chain of command.

The likely impact of the ruling was therefore far from clear. The court raised several questions that it did not answer, instead sending the case back to the lower federal courts in California, where it began as a suit by an assistant prosecutor in Los Angeles who claimed he was the victim of unconstitutional retaliation for complaints about a search warrant.

The National Whistleblower Center and other groups representing public employees issued statements deploring the decision and warning that it would deter employees from taking risks to expose waste and fraud.

But Daniel P. Westman, a lawyer with the firm of Morrison & Foerster who advises employers on whistle-blower issues, said in an interview that the decision did little more than affirm the status quo by "rejecting a very overreaching opinion" by a federal appeals court. He said "smart employers" would now be sure to encourage the use of internal complaint mechanisms to deter employees from taking their complaints public and thus enjoying the prospect of greater constitutional protection.

Justice Kennedy's opinion drew a formal distinction between two kinds of speech by public employees: statements they make "pursuant to their official duties" and those made as citizens contributing to "the civic discourse." The first category was not protected by the First Amendment's guarantee of free speech, Justice Kennedy said, while the second retained "the prospect of constitutional protection."

The dissenting justices warned that this distinction would often be unclear in practice and difficult for lower courts to apply.

"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 John Paul Stevens said in a dissenting opinion.

The other dissenters were Justices David H. Souter, Stephen G. Breyer and Ruth Bader Ginsburg.

Chief Justice John G. Roberts Jr. joined the majority opinion, as did Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. Justice Alito was not on the court when the case, Garcetti v. Ceballos, No. 04-473, was argued last October. The case had not been decided by the time Justice Sandra Day O'Connor retired and Justice Alito took his seat in January.

When the court ordered a second argument, held on March 21, the implication was that the eight remaining justices who had heard the case the first time were deadlocked and that Justice Alito would break the tie. The reality may have been more complex.

Justice Breyer made it clear in his separate dissenting opinion that he was satisfied with neither Justice Kennedy's majority opinion nor Justice Souter's principal opinion for the other three dissenters, and his vote may have been uncertain until late in the process. Justice Breyer would have emphasized the fact that as a lawyer, the plaintiff, Richard Ceballos, had special ethical obligations to speak up if he found problems with a pending prosecution and so deserved special constitutional protections.

In his lawsuit, Mr. Ceballos claimed that he was given an unwelcome transfer and was denied a promotion after taking several steps to complain about the apparent unreliability of an affidavit that had provided the basis for a search warrant in a case the office was prosecuting. He told his supervisors of his concerns, and wrote a memorandum recommending dismissal of the case. There was a heated meeting, after which his concerns were rejected.

Mr. Ceballos later testified for the defense at a court hearing, and spoke about the issue at a meeting of the Mexican American Bar Association.

The Supreme Court's focus, however, was entirely on the initial internal memorandum because the United States Court of Appeals for the Ninth Circuit, in ruling for Mr. Ceballos, found that the document was constitutionally protected speech and did not then go on to consider the constitutional status of his other actions.

In overturning the Ninth Circuit's judgment, Justice Kennedy's opinion said that in writing the memorandum, Mr. Ceballos was simply carrying out the normal duties of his job, which included advising his supervisors on how to proceed with pending cases.

"We hold that when public employees make statements pursuant to their official duties," Justice Kennedy said, "the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline."

To hold otherwise, he continued, would be to give employees "a right to perform their jobs however they see fit," as a matter of constitutional law. It would "commit state and federal courts to a new, permanent and intrusive role" of overseeing internal communications in government workplaces, the justice concluded.

The lower courts will now consider whether Mr. Ceballos was performing his normal duties when he testified at the hearing and spoke to the bar association. Justice Souter, in his dissenting opinion, said that these were not obviously part of the prosecutor's normal duties and that they needed to be analyzed independently.

If they are found to be "citizen" speech, under the dichotomy the court established, these comments will be analyzed under a 1968 Supreme Court precedent that set up a balancing test for whether a public employee's speech is constitutionally protected. Courts weigh the employee's interest in commenting on matters of public concern against the employer's interests as a manager.

source: http://www.nytimes.com/2006/05/31/washington/31scotus.html?ei=5094&en=1731b0ae7e952c47&hp=&ex=1149048000&partner=homepage&pagewanted=print 30may2006

Quotes on Whistleblower Case

AP 30may2006


Excerpts from the Supreme Court's 5-4 ruling on government whistleblowers and reaction to the decision.

"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 same goes for writing a letter to a local newspaper or discussing politics with a co-worker. When a public employee speaks pursuant to employment responsibilities, however, there is no relevant analogue to speech by citizens who are not government employees." -Justice Anthony M. Kennedy, writing for the majority.


"The proper answer to the question `whether the First Amendment protects a government employee from discipline based on speech made pursuant to the employee's official duties,' is `Sometimes,' not `Never.' Of course a supervisor may take corrective action when such speech is `inflammatory or misguided.' But what if it is just unwelcome speech because it reveals facts that the supervisor would rather not have anyone else discover?" -Justice John Paul Stevens, in dissent.


"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." -Steven Shapiro, national legal director for the American Civil Liberties Union.


"This significant, albeit qualified, protection of public employees who irritate the government is understood to flow from the First Amendment, in part, because a 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. 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." -Justice David H. Souter, in a dissent.


"It's not the role of the First Amendment to be an all-purpose whistleblower law." -Gene Schaerr, a Washington attorney who filed a friend-of-court brief on behalf of the International Municipal Lawyers Association.


"I'm disappointed. I think the court's ruling clearly strikes a blow to all government employees. It creates a disincentive for government employees to report misconduct, waste or fraud that they witness." -Richard Ceballos, the whistleblower in the case.


"It could be the end of the case, if the client wants to put it behind him. I think if we continue fighting it, we will prevail." -Humberto Guizar, Ceballos' lawyer in Montebello, Calif.


"The speech of vast numbers of public employees deals with wrongdoing, health, safety, and honesty; for example, police officers, firefighters, environmental protection agents, building inspectors, hospital workers, bank regulators, and so on. Indeed, this categorization could encompass speech by an employee performing almost any public function, except perhaps setting electricity rates." -Justice Stephen Breyer, in a dissent.


"It will enable management to be more honest and candid in its personnel actions." -Employment attorney Dan Westman.

"Government workers who expose official misconduct deserve praise, not punishment. This ruling points out the need for tougher laws to protect whistleblowers." -Sen. Frank Lautenberg, D-N.J.


"We need not, and for that reason do not, decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching." -Kennedy, in the majority opinion.


"This decision gives constitutional sanction to those who would fire a public worker for stepping forward to preserve the integrity of our public institutions as a government whistleblower." -Gerald McEntee, president of the American Federation of State, County and Municipal Employees.

source: http://seattlepi.nwsource.com/national/1154AP_Scotus_Quotes.html 30may2006

Supreme Court limits protections for government whistleblowers

STEPHEN HENDERSON / Knight Ridder 30may2006


WASHINGTON - The Supreme Court made life a bit tougher for government whistleblowers Tuesday, saying the First Amendment doesn't protect public employees who disclose waste and fraud as part of their jobs.

By a 5-4 margin, the justices said that the government's interest in effectively managing operations outweighs the interests that protect employee speech, even in cases where employees may be reporting inefficiencies or wrongdoing.

The ruling leaves public employees - about 20 million at the local, state and federal levels - significantly more prone to retaliation from their employers if they speak out in ways that displease their bosses.

In a departure from previous court rulings, Tuesday's decision focused on the role that employees play when whistle-blowing, rather than the content of their speech. Writing for the court, Justice Anthony Kennedy said employees who speak out while acting in an official capacity essentially forfeit the First Amendment rights they have as citizens, no matter what they say.

Kennedy's opinion was joined by Chief Justice John G. Roberts Jr., and justices Antonin Scalia, Clarence Thomas and Samuel Alito Jr.

In a dissent, Justice David Souter said the court had unnecessarily abandoned its traditional balancing test, which measured the public value of the employee's speech against a government interest in maintaining a disciplined workplace.

Souter agreed that the government's interests may be compelling, but he rejected a categorical rule that denies protection to employees who speak out in an official capacity.

He noted previous cases in which the court "realized that a public employee can wear a citizen's hat when speaking on subjects closely tied to the employee's own job."

Justices John Paul Stevens, Ruth Bader Ginsburg and Stephen Breyer also dissented.

Kennedy wrote that the decision didn't prevent public employees from participating in discussions about matters of public concern; it simply "does not invest them with a right to perform their jobs however they see fit."

The case was argued twice at the high court - once with Justice Sandra Day O'Connor there and a second time with Alito, who took her place. The justices apparently couldn't reach a resolution before O'Connor left, and the remaining eight justices were split 4-4. Alito, therefore, cast the decisive vote.

Some advocates say the ruling puts public employees who seek to report wrongdoing in an untenable position.

"It's a devastating decision that, in practice, obliterates protections for about 90 percent of public workers," said Stephen Kohn, board chairman for the National Whistleblower Center. Kohn, who has handled whistleblower suits for 25 years, said the majority of employees who expose wrongdoing do so through official channels. And for federal employees, he said, doing so is part of their job requirement.

"So what are they supposed to do?" Kohn asked. "It's their job to do it, but the court says they have no constitutional protection for it."

Kohn also said that many other efforts to protect whistleblowers, such as the federal Whistleblower Protection Act, have been interpreted to stop short of shielding employees who expose wrongdoing as part of their jobs.

"So now they have little protection at all," he said.

The case, Garcetti v. Ceballos, involved a deputy district attorney in Los Angeles who, in an official internal memo, reported what he believed were misrepresentations in a search warrant prepared by a sheriff's deputy. Defense lawyers used the memo to challenge the warrant's validity.

Richard Ceballos, the deputy district attorney, claimed his bosses then mistreated him in a number of ways, including denying him a promotion. He sued, saying his bosses had violated his civil rights by punishing him for speaking out.

A federal court originally dismissed Ceballos' claim, but an appeals court reversed that decision, saying Ceballos' memo was a matter of public concern, so it was protected.

Kennedy said the appeals court got it wrong by stopping its analysis at the content of Ceballos' memo. The lower court, he said, also needed to determine whether Ceballos' comments in the memo were related to his job.

"When public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes," Kennedy wrote. "The Constitution does not insulate their communications from employer discipline."

source: http://www.mercurynews.com/mld/mercurynews/news/politics/14700962.htm 30may2006

From High Court, Warning to Whistle-Blowers

The justices find that public workers' criticisms aren't 'protected' speech

WARREN RICHEY / Christian Science Monitor 31may2006


WASHINGTON Government employees do not enjoy free-speech protection against being disciplined for exposing official misconduct at work.

In an important decision that will make it more difficult for some government whistle-blowers, the US Supreme Court ruled Tuesday that public workers who make allegations of misconduct in official reports and in work-related statements may be disciplined for their speech without violating First Amendment protections.

The 5-to-4 decision came in the case of Richard Ceballos, a supervising district attorney in Los Angeles. Mr. Ceballos had raised questions in a memo about whether a deputy sheriff had lied to obtain a search warrant. Ceballos later testified for defense attorneys who were attacking the validity of the search warrant and seeking to have the case against their client dismissed.

Other prosecutors in Ceballos's office disagreed with his assessment, and a trial judge ruled the case could go forward.

Ceballos was reassigned. He later filed a federal lawsuit saying his supervisers demoted him in retaliation for his memo and testimony on the search-warrant issue.

In his suit, Ceballos claimed his actions were protected by the First Amendment.

A federal judge dismissed the suit, but the Ninth US Circuit Court of Appeals ruled that the Ceballos memo was protected speech.

On Tuesday, the Supreme Court reversed that ruling.

"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," writes Justice Anthony Kennedy for the majority.

The majority justices drew a distinction between work-related speech and the speech of a concerned citizen.

"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," Justice Kennedy writes. "When, however, the employee is simply performing his or her job duties, there is no warrant for a similar degree of scrutiny."

Joining Kennedy's majority opinion were Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas, and Samuel Alito.

The case had first been argued when Justice Sandra Day O'Connor was on the court. It was set for reargument after Justice Alito joined the high court, suggesting the justices were split 5-4 on the case.

In a dissent, Justice John Paul Stevens called the majority opinion "misguided."

"The proper answer to the question 'whether the First Amendment protects a government employee from discipline based on speech made pursuant to the employee's official duties' is 'Sometimes,' not 'Never,' he writes.

"Of course a supervisor may take corrective action when such speech is inflammatory or misguided," Justice Stevens writes. "But what if it is just unwelcome speech because it reveals facts that the supervisor would rather not have anyone else discover?"

Kennedy said there are protections other than the First Amendment that safeguard whistle-blowers and others from supervisers who might use their managerial powers inappropriately.

Justice David Souter, in a separate dissent joined by Stevens and Justice Ruth Bader Ginsburg, said he agreed with the majority that a government employer has "substantial interests in effectuating its chosen policy and objectives, and in demanding competence, honesty, and judgment from employees who speak for it in doing their work."

Justice Souter adds: "But I would hold that 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."

When those interests do outweigh the government's stake, Souter writes, "public employees who speak on these matters in the course of their duties should be eligible to claim First Amendment protection."

Also on Tuesday, the Supreme Court agreed to examine whether an Oregon jury overstepped constitutional bounds when it ordered the Philip Morris tobacco company to pay $79.5 million in damages to the family of a longtime smoker.

The jury made the award to the family of Jesse Williams, who had smoked three packs of Marlboro cigarettes a day until he died of lung cancer in 1997.

At issue in the case is whether the jury award is in proportion to the injury suffered. The case, Philip Morris v. Williams, won't be heard by the court until next fall.

source: http://www.csmonitor.com/2006/0531/p03s02-usju.html 30may2006

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