Supreme Court Rules against Government Whistleblowers

Garcetti v. Ceballos Ruling Undermines Public Employees' First Amendment Rights. Press release from the Government Accountability Project, dated May 30, 2006:

Today, the Supreme Court severely limited the rights of government employee whistleblowers to protect the public interest. Through its ruling in Garcetti v. Ceballos, the Court holds that government employees' job-related speech is not protected by the first amendment, a significant departure from prior law.

"The Supreme Court's ruling strikes a shameful blow against free speech rights and a vigorous democracy - public employees' ability to serve as guardians of good government are severely restricted by this opinion," stated Joanne Royce, GAP General Counsel. "A deeply divided, but majority court, today upheld the values of "employer control" over the traditional American values of freedom and protection of public discourse and professional dissent. This ruling will have a serious chilling effect on the willingness of public employees to risk their livelihood to expose government fraud and waste. Our democratic traditions and the American taxpayer are sacrificed to the alter of "employer control."

GAP's amicus curie brief to the Court regarding the case, written by Royce and GAP Legal Director Tom Devine, can be found at: http://www.whistleblower.org/doc/Ceballos%20amicus%20GAP%20NELA%20ATLA.pdf)

The case before the court was that of Richard Ceballos, a deputy district attorney in Los Angeles County, California who learned that a deputy sheriff lied to obtain a search warrant, Ceballos advised his superiors of the wrongdoing, and recommended that the county drop its case. His recommendation was ignored, and his superiors demanded that he continue with the prosecution. Ceballos then informed the defense of his findings, as required by law. Despite the fact that he had acted in a lawful fashion, Ceballos was removed from the case, demoted, and transferred to a different office. Ceballos' ordeal is a shining example of how ethical government workers are supposed to act - he exposed misconduct that was in gross violation of the underpinnings of the American justice system. It is a tragedy that the Supreme Court allowed the government to penalize such principled behavior.

The ramifications of the Supreme Court's decision are devastating to public employees who choose to speak out in the interest of the American people. By restricting the speech of whistleblowers, the Supreme Court has made government more susceptible to fraud and corruption. Public employee truth-tellers are essential to the safety and welfare of our country - they expose corruption, fraud, and national security shortcomings. The muzzling of such vital contributors to the nation's well-being will certainly have grave consequences. Without whistleblowers, government will no longer be compelled to act in an accountable and ethical fashion.

Tom Devine, GAP Legal Director, commented "This decision is outrageous. Canceling the doctrine of "duty speech" means that government employees only have an on-the-job right to be "yes people," parroting false information and enabling illegality. The Court alludes to the Whistleblower Protection Act, but it has been weakened by a series of limiting court decisions. House and Senate Leaders must schedule a vote on legislation to strengthen the Whistleblower Protection Act, so that government employees are not punished for speaking in the public interest. This bill has been unanimously approved by Congressional committees for the last two Congresses, but the leadership has refused to schedule an up-or-down vote. It is time for Congress to act."

GAP has been an outspoken advocate of Ceballos' cause, because we see it as a vital stop-gap in the protection of employees who speak out, to protect the public interest, about wrong-doing. In this case, Ceballos' speech protects the integrity of the criminal investigation process, and that is vital. (See our October 2005 New York Times Op-Ed by GAP Communications Director Dylan Blaylock and FBI whistleblower Coleen Rowley, available at http://whistleblower.org/content/press_detail.cfm?press_id=322).

Another comment on the case:

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. The ruling affects only constitutional free-speech claims related to work, the court said, not the rights of public employees off the job. Nor does it affect state and federal labor laws or whistleblower protection statutes, the court 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. Supporters said that it will protect governments from lawsuits filed by disgruntled workers pretending to be legitimate whistleblowers.

For the roughly 500,000 state and local public employees in Florida, the impact will likely be muted because state law includes strong free-speech protections. But any federal employee in the state - be it an FBI agent, a Veteran's Administration nurse or a soldier - will be affected by Tuesday's ruling, said Tampa lawyer John Lauro, a former federal prosecutor who specializes in whistleblower cases. Also possibly affected are any state or local public employees whose salary derives from federal pass-through funds, such as a university researcher receiving a federal grant. "This is disastrous for exposing federal wrongdoing,'' Lauro said. "This says those people should be discouraged from voicing concerns. It effectively puts a muzzle on them.''

Gene Schaerr, a lawyer for the International Municipal Lawyers Association, an organization of local government attorneys that supported the L.A. County District Attorney's Office, said the ruling "allows local and state governments the appropriate degree of oversight of their employees, without really impinging upon their First Amendment right to speak out as private citizens."

The ruling was perhaps the clearest sign yet of the Supreme Court's shift with the departure of Justice Sandra Day O'Connor and the arrival of Alito. A year ago, O'Connor wrote 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. Kennedy wrote that many "powerful" rules still "provide checks" on supervisors. "We reject, however, the notion that the First Amendment shields from discipline the expressions employees make pursuant to their professional duties," Kennedy wrote.

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.

In his dissent, Justice David 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." 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.

Employment attorney Dan Westman said the 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. 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," he said.

The court's decision immediately prompted calls for Congress to strengthen protections for workers. Kennedy 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."

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