Court limits whistleblower protection for public employees

Court limits whistleblower protection for public employees
Wednesday, May 31, 2006
CHARLES LANE
The Washington Post
http://www.al.com/news/birminghamnews/wire.ssf?/base/news/1149067664133710.xml&coll=2

WASHINGTON - The Supreme Court on Tuesday bolstered government's power to discipline public employees who make charges of official misconduct, ruling that the First Amendment does not protect those who blow the whistle in the course of their official duties.

By a vote of 5 to 4, the court ruled the Los Angeles County district attorney's office did not violate prosecutor Richard Ceballos' freedom of speech by allegedly demoting him after he wrote to supervisors charging that a sheriff's deputy had lied to get a search warrant.

Dissenters on the court, civil libertarians and public employee unions said the ruling, which extends to all of the nation's public employees, could deter government workers from going to their bosses with evidence of corruption or ineptitude.

Ernest Fitzgerald, a Birmingham native who had to go to court to keep his Pentagon job after exposing waste and fraud in the Defense Department, said he is concerned that protections for government employees are being weakened.

"From my standpoint they've been weakened," said Fitzgerald, who was fired by President Richard Nixon but went to court and won protection for his job until he retired earlier this year at age 79. "I think we are suffering a steady erosion since the Nixon days."

He added, "I think we need more, not less, free speech."

But, the court ruled, recognizing claims like Ceballos's could turn bureaucratic policy disputes into federal constitutional lawsuits, disrupting public administration, clogging courts and making it hard for government to speak with a single voice.

The Bush administration backed the district attorney's office, citing the U.S. government's interest as "the nation's largest public employer."

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.

In his opinion for the court, Justice Anthony Kennedy wrote that those "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. "Our precedents do not support the existence of a constitutional cause of action behind every statement a public employee makes in the course of doing his or her job."

Kennedy was joined by Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel Alito.

But Kennedy's opinion drew a sharp dissent from Justice David Souter, who argued that statutory and other protections for whistleblowers are weak. Justices John Paul Stevens and Ruth Bader Ginsburg joined Souter. Justice Stephen Breyer dissented in a solo opinion.

Instead of barring all free-speech claims relating to public employees' official duties, Souter wrote, the court should have let lower courts assess them case-by-case.

"(P)rivate 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."

In a separate opinion, Stevens questioned the court's distinction between speech by public employees acting officially, which gets no free-speech protection, and speech by public employees acting as citizens - such as a letter to the editor - which can still get protection.

"(I)t seems perverse to fashion a new rule that provides employees with an incentive to voice their concerns publicly before talking frankly to their superiors," Stevens wrote.

Souter raised the specter of threats to state university professors' free speech, but Kennedy said teaching and scholarship were beyond the scope of the case.

The case added a note of division to a Supreme Court term that had been marked by many unanimous opinions under Roberts, who has publicly called for more consensus on the court.

News Washington correspondent Mary Orndorff and The Associated Press contributed to this report.

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