High Court restricts free-speech rights

The Supreme Court on May 30 restricted the free-speech rights of the nation's 21 million public employees, ruling that the First Amendment does not protect them from being punished for complaining to their managers about possible wrongdoing. Although government employees have the same rights as other citizens to speak out on controversies of the day, they do not have the right to speak freely inside their offices on matters related to "their official duties," the high court said in a five to four decision in which new Justice Samuel Alito cast the deciding vote. In what is considered a victory for the Bush administration, lawyers for government whistle-blowers denounced the ruling as a major setback. They said it could threaten public health and safety. Public sector hospital workers who know of dangers may be discouraged from revealing them, while police and public employees may be dissuaded from exposing corruption, they said. "In an era of excessive government secrecy, the court has made it easier to engage in a government cover-up by discouraging internal whistle-blowing," said Steven Shapiro, legal director for the ACLU. Critics predict 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. The decision threw out most of a lawsuit filed by Deputy Dist. Atty. Richard Ceballos, who said he was disciplined after he wrote internal memos alleging that a police officer may have lied to obtain a search warrant. The prosecutor urged his supervisors to dismiss a pending criminal case because of the police misconduct. His advice was rejected, and he was transferred to a lesser job farther from his home and denied a promotion. Ceballos then sued county officials, including then-Dist. Atty. Gil Garcetti, alleging he was retaliated against for speaking out within the office. The US 9th Circuit Court of Appeals agreed that he was entitled to a trial on his lawsuit because he had spoken on a "matter of public concern." But the Supreme Court reversed that ruling on May 30. Because the decision interprets the First Amendment, it applies to all public institutions–including federal and state agencies, public hospitals and public schools and colleges. The decision effectively bars public employees from reporting misconduct to their supervisors or within the chain of command, but does not keep them from reporting such incidents to the media, Manheim Family Attorney for First Amendment Rights at the ACLU of Southern California Peter Eliasberg said. Nor does it affect state and federal labor laws or whistle-blower protection statutes, according to the court. Supporters said that it will protect governments from lawsuits filed by disgruntled workers pretending to be legitimate whistle-blowers. Exposing government misconduct is important, Justice Anthony M. Kennedy wrote for the majority. "We reject, however, the notion that the First Amendment shields from discipline the expressions employees make pursuant to their professional duties," he said. But Kennedy's opinion drew a sharp dissent from Justice David H. Souter, who argued that statutory and other protections for whistle-blowers are weak. Justices John Paul Stevens and Ruth Bader Ginsburg joined Souter. Justice Stephen G. Breyer dissented in a solo opinion. "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 wrote, "and when they do, public employees who speak on these matters in the course of their duties should be eligible to claim First Amendment protection." The federal government and most states have laws designed to protect whistle-blowers. For example, a California law forbids employers from retaliating against workers who "disclose a violation of a federal or state statute or regulation." But advocates for whistle-blowers say these laws prove ineffective in many cases. That's why they say the free-speech guarantee of the First Amendment has been crucial. "Public employee truth-tellers are essential to the safety and welfare of our country. They expose corruption, fraud and national security shortcomings," said Joanne Royce, counsel for the Government Accountability Project in Washington. The Bush administration, the National League of Cities, the National School Boards Association and other groups of public employers joined the case on the side of Los Angeles County officials. The ruling upheld the position of the Bush administration, which had joined the district attorney's office in opposing absolute free-speech rights for whistle-blowers. The Bush administration backed the district attorney's office, citing the US government's interest as "the nation's largest public employer." The ruling was perhaps the clearest sign yet of the Supreme Court's shift with the departure of moderate Justice Sandra Day O'Connor and the arrival of Alito. It was one of three cases set down for reargument after O'Connor left the court on Jan. 31, with Alito taking her place. Stephen Kohn, chairman of the National Whistle-blower Center, said: "The ruling is a victory for every crooked politician in the United States."