Supreme Court Makes it Harder for Whistleblowers to Go Public

WASHINGTON – The Supreme Court on Tuesday made it harder for government employees to claim they were retaliated against for going public with allegations of official misconduct.

By a 5-4 vote, justices said the nation's 20 million public employees do not have carte blanche free speech rights to disclose government's inner-workings. New Justice Samuel Alito cast the tie-breaking vote.

Justice Anthony M. Kennedy, writing for the court's majority, said the First Amendment does not protect "every statement a public employee makes in the course of doing his or her job."

Click here to read the opinion (pdf).

The decision came after the case was argued twice this term, once before Justice Sandra Day O'Connor retired in January, and again after her successor, Alito, joined the bench.

The ruling sided with the Los Angeles County District Attorney's office, which appealed an appellate court ruling which held that 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.

Dissenting justices said Tuesday that the ruling could silence would-be whistleblowers who have information about governmental misconduct.

"Public employees are still citizens while they are in the office," wrote Justice John Paul Stevens. "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."

In a separate dissent, Justice David H. Souter wrote: "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."

The ruling is significant because an estimated 100 whistleblower retaliation lawsuits are filed each year. Bonnie Robin-Vergeer, an attorney with the Public Citizen Litigation Group which represented Ceballos said that employees may now be fearful of reporting problems with such things as hurricane preparedness and terrorist-related security.

"If that information cannot be aired, government cannot be held accountable and problems cannot be corrected," she said.

The Bush administration had urged the high court to place limits on when government whistleblowers can sue, arguing that those workers have other options, including the filing of civil service complaints.

Kennedy noted in his ruling that there are whistleblower protection laws. The ruling, which had the votes of the court's conservatives including new Chief Justice John Roberts, showed great deference to the government.

"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.

He said 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.