Justices, 5-4, Limit Whistleblower Suits (Alito Breaks Tie, Sides With Conservatives)

New York Times ^ | May 30, 2006

[RWR8189]

WASHINGTON -- The Supreme Court on Tuesday made it harder for government employees to file lawsuits claiming 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."

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 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.

[antiRepublicrat]

When you work for the Government, you don't have the same rights of free speech when it concerns your job or what you are privvy to in daily work. If you go public and get fired, you are now out of luck in suing Uncle Sam thanks to this ruling!

I think this ruling is quite different from that. You are not protected if you blow the whistle on something while acting in the capacity of your employment. In this case, it was an official memo he sent in his capacity as a prosecutor. The memo was apparently quite inflammatory and out of line.

This doesn't cover things you do while not in your capacity as an employee, such as if he'd written a newspaper in his capacity as a concerned citizen. IOW, this doesn't stop real whistleblowing at all. And in most cases in the federal government, you can't be punished for reporting something to the Inspector General anyway.

[finnman69]

Ahem.. 'CIA'

cough cough.. 'NSA'

achooo...'State Department'

[eleni121]

Good. About time.

Now we need another conservative justice.

[Our man in washington]

I'm a Federal employee. This looks like a good call.

I don't see why I would have the right to compromise my agency's mission by going out and making false or unproven allegations. If I'm running a store, and my clerk lies to a report and say we sell tainted meat, I could fire that clerk. Why should it be any different at the Federal level?

Now if a whisteblower makes accurate accusations, Federal personnel law would protect him or her.

[George W. Bush]

I completely understand the mentality behind this: CYA for the gubmint, but am I off by saying this is a violation of 1st Amendment freedoms?

An unfortunate ruling if it is as described. I'd like to read more when the opinion comes out to see exactly how the majority defines this.

Unless we were very wrong about Alito and Roberts, I think this article may be biased. In addition, the press is naturally going to hate anything that might dry up their confidential whistleblower sources.

I'll wait for the opinion before taking this rather vague article at face value.

[TKDietz]

The opinion is already out. http://www.supremecourtus.gov/opinions/05pdf/04-473.pdf

[TKDietz]

It would be interesting to see the actual memo. I wonder what was considered inflammatory about it. Just the fact that a prosecutor accused an officer of lying? I don't know that the First Amendment approach was the right one to take in this case, but I must admit I know very little about employment law or whistle-blower laws. I do know though that prosecutors have a duty to provide the defendant all exculpatory evidence and they shouldn't allow their witnesses to lie. Not to rip on police because a lot of them are great guys, but some lie like crazy. They'll do whatever it takes to get a conviction. Prosecutors know this, but aren't exactly tripping over themselves trying to expose the liars because they want to win their cases and it seems like an awful lot if not most aren't too concerned with how they win as long as they win.

I like an honest prosecutor who will stand up and tell the truth, even if it might hurt his case. I think it is good that there are some prosecutors who will bust out a lying cop. We don't want prosecutors to be so concerned with winning that to them the ends justify the means even if the means are unethical. Just like all attorneys they aren't supposed to put on false testimony, and their responsibilities go a little farther than that because they are more than just advocates, they're ministers of justice for the government. They have a duty to see that cases aren't filed without probable cause, that basic constitutional rights aren't ignored, some responsibility to see that defendants are accorded procedural justice, and so on. They represent the government in criminal proceedings and wield an enormous amount of power with a lot of discretion to use it how they see fit. They should be held to high standards.

Law enforcement in a way are their investigative staff. Law enforcement are also their trained witnesses who come with built in credibility because of their badges. They're supposed to be the good guys, and judges and jurors tend to believe them because law enforcement are expected to tell the truth, whereas criminal defendants and their witnesses are pretty much expected to lie it seems. Of course law enforcement officers aren't all impeccably honest because they carry badges though. Some of them are worse than a lot of the people they arrest, and it is rare indeed that one officer will report another for misconduct, especially when it's something they would consider minor like some "creative" testimony to get a warrant or a conviction. If a prosecutor is aware that his witnesses are lying, I think he has a duty to say something about it.

Maybe the First Amendment angle isn't it, but there needs to be some protection for prosecutors to protect them from retaliatory action for doing nothing other than living up to their ethical obligations. Think about it. If you or someone you care about was wrongfully accused of a crime, and one of the the prosecutors knew a key witness was lying, wouldn't you want for that prosecutor to be able to say something about it without fear of retaliation by his employer? I know I would. I want them to be able to say something about lying witnesses even if the defendant is guilty. We need to strongly discourage lying to get warrants or convictions because that sort of conduct negates the protections afforded in the Constitution and in the long run results in wrongful convictions.

[antiRepublicrat]

Maybe the First Amendment angle isn't it, but there needs to be some protection for prosecutors to protect them from retaliatory action for doing nothing other than living up to their ethical obligations.

Basically, this falls under employment law, not 1st Amendment constitutional law. And from the story it looks like this guy did get out of line, and a proper review was performed.

[Cowboy Bob]

Justice Anthony M. Kennedy, writing for the court's majority...

Maybe Kennedy is being brought back into the fold, as I hoped/predicted...

[Quix]

Maybe it's more complicated than I think . . . but I agree with you.

Whistleblowers--especially for some sorts of criminal etc. activity on the part of various powers that be . . . . honorable whistleblowing should be encouraged, rewarded, protected and made easy.

[ATOMIC_PUNK]

But Congress is Above the Law ! right ?

[Frank Sheed]

No, the last four things...eschatology: death, judgment, heaven and hell. Never hurts to be reminded of those!

F

[lepton]

they are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.

Which is not to say that they may have other legal protections...it's just not a Constitutional issue.

[LibertarianInExile]

Whistleblowers ARE able to expose it. Here's the problem with saying that federal courts should protect them from retaliation instead of civil service boards:

"To accept Mr. Ceballos's argument, the majority concluded, would be to commit state and federal courts to 'a new, permanent and intrusive role' overseeing communications among government employees and their superiors."

We generally agree but there is a real problem divining where you protect political whistleblowers and where you attack their political bosses for day-to-day decisionmaking. I lean towards the belief that the federal courts shouldn't be in that business if only because being in that role will make them a political branch.

Now, having said that, why is it that the liar cop wasn't prosecuted? Who is in LA that isn't doing their job, including the Fibbies who investigate government corruption? We know the answer--the system protects itself, the people must take it on for corruption to end, and they are equally corrupt (at least, in LA they are).

[LibertarianInExile]

Your list needs revision. Martinez (R-INO FL) is an illegal immigrant whore, I won't vote for him again, and I'll work against him.

[gondramB]

Those are excellent points - I'll rethink this through the day at work. Thanks.

[A2J]

It is in employment policy -- you take an oath not to divulge information that comes across.

So an employee who rats out a snake like Rep. William Jefferson, for example, should have no protection for uncovering crimes?

What about police officers who expose corruption within their departments? They should get the axe, too?

[A2J]

this influence of a President who understands that the Constitution

Surely you're not referring to Mr. Bush, are you?

The last president(s) who respected the constitution were most of those who served before Lincoln.

[A2J]

Seems to me a tad shortsighted for "conservatives" to be cheering a ruling which protects big government from its internal critics.

Precisely.

Just goes to show you how much less conservative the GOP is becoming...and fast.

[A2J]

It is not easy to get fired by the Government and usually takes years and lots of manhours.

Apparently that is going to change now.

I'm sure you're so proud!