[tag]Richard Ceballos[/tag] seemed like a fairly classic example of a [tag]whistleblower[/tag]. He was a deputy district attorney in Los Angeles who reviewed a warrant in a criminal case. Ceballos raised objections to flaws in the warrant, put those concerns in writing, but was overruled by his superiors. Later, he testified in the case about his original observations for the defense.
Ceballos was then turned reassigned and down for a promotion, prompting him to file suit, claiming that the District Attorney’s office punished him for exercising his free speech, which should have been protected under whistleblowers’ protection.
Today, the [tag]Supreme Court[/tag], in a narrow 5-4 ruling, disagreed.
The Supreme Court today narrowed the First Amendment protections for public employees who reveal perceived wrongdoing they happen to observe in the course of doing their jobs.
The decision enhances the ability of governments at all levels to punish employees for speaking out, shielding officials in many instances from lawsuits for violating the right to free speech. […]
In a 5-4 opinion , Justice Anthony M. Kennedy said the courts should not be displacing “managerial discretion” over the behavior of employees by intruding in decisions that are wholly related to the workplace. “Employers have heightened interests in controlling speech made by an employee in his or her professional capacity…. Official communications,” he said, “have official consequences.”
This, it seems to me, was the wrong call, which wouldn’t have happened a year ago.
For example, this 5-4 ruling would likely have gone the other way were it not for Sandra Day O’Connor’s retirement. Recent Supreme Court rulings had been expanding constitutional protections for employees who speak out; this one interrupted that progress. What was the difference? In this case, Garcetti v. Ceballos, Samuel [tag]Alito[/tag], and not [tag]O’Connor[/tag], was the deciding vote. (The remaining five justices in the majority were, of course, Roberts, Scalia, Thomas, and Kennedy.)
As for the substance of the case, Kennedy said employees could still speak out as citizens, but not as a public employee who speaks “pursuant to official duties.” So, a teacher’s letter to a local newspaper addressing school funding issues is protected, but a deputy district attorney’s memorandum is not because he was a public employee engaging in on-the-job speech.
Does this strike you as terribly disjointed? Isn’t the ruling practically a yes-man protection act? As Marty Lederman explained, “[I]f one’s duties are to expose wrongdoing in the workplace, such exposure is entitled to no constitutional protection.”
So, [tag]whistleblowers[/tag], when you work in government and see errors of fact and judgment, don’t tell your superiors because they can legally hurt your career if they disagree with your analysis. Instead, just leak it to the media and let the process work itself out.