A Confused SCOTUS Rules That Whistleblowers Must Work Outside Of System

Blow the Whistle, Loudly

This ruling scares me. It basically says that if you find something wrong within a part of the government, you must risk job, reputation and reprisals by working outside of the system to blow the whistle, rather than to work the system and try to make it conform to standards of decency, honesty and service. It also puts into question the free speech rights of those that work for the government, especially when we consider the confusing and conflicting laws regarding what and where a government official or employee may say regarding "confidential" or "secure" matters.

The Supreme Court whittled away at the First Amendment yesterday, ruling against a prosecutor who raised concerns about the validity of a search warrant. The court made the law in this area messy, and even illogical. It suggested the attorney would have had more protection if he had embarrassed his office publicly than by working quietly through the system. But the bigger problem is that the ruling rolls back government workers' rights to speak out against possibly illegal actions.

Richard Ceballos, a supervising deputy district attorney in Los Angeles, was contacted by a defense attorney who said there were inaccuracies in an affidavit used to get a search warrant. After he investigated for himself, Mr. Ceballos agreed. He told his supervisors, and followed up with a memo. The prosecution went forward, and the trial court upheld the warrant. Mr. Ceballos claims that as a result of his stand, his employer demoted him.

The Supreme Court has long held that the First Amendment bars the government from retaliating against workers for speaking out on matters of public importance. In a landmark 1968 ruling, it held that a school board acted unconstitutionally when it fired a teacher for writing a letter to a newspaper criticizing the allocation of school funds. In 1979, in an opinion by Chief Justice William Rehnquist for a unanimous court, a teacher's comments to her supervisor were held to be protected. Mr. Ceballos's actions should have fallen under these precedents.

By a 5-4 vote, however, the court ruled that they were not. (The newly appointed Justice Samuel Alito provided the deciding vote, while former Justice Sandra Day O'Connor might well have sided with the dissenters.) What mattered for the majority was that Mr. Ceballos spoke "pursuant to his duties" rather than as a "citizen." It is an odd distinction, and one that seems designed to explain away the court's departure from its past decisions, rather than reflecting any principled reading of the First Amendment. Bizarrely, the majority would apparently have given Mr. Ceballos more rights if he had held a press conference to denounce his supervisors.

The First Amendment should not protect employees from discipline for every statement they make at work, clearly. But as the dissenters point out, it should protect them in a case like this one, where an employee was bringing to light information that advances the public interest in honest government and the rule of law.