New York Times
"Some Whistle-Blowers Lose Free-Speech Protections "
Linda Greenhouse, May 30, 2006
The Supreme Court ruled on Tuesday that the Constitution does not protect public
employees against retaliation by their supervisors for anything they say in the
course of performing their assigned duties.
While the court's focus in the 5-to-4 decision was on disputes that remain
within the workplace, the decision raised questions about the extent to which
whistle-blowers who make their complaints public might now face a greater danger
of retaliation.
Although several employee groups raised immediate alarms, Justice Anthony M.
Kennedy's majority opinion in fact contained the counterintuitive implication
that employees might fare better by speaking out as ''citizens'' and taking
their complaints to the public rather than keeping them within the official
chain of command.
The likely impact of the ruling was therefore far from clear. The court raised
several questions that it did not answer, instead sending the case back to the
lower federal courts in California, where it began as a suit by an assistant
prosecutor in Los Angeles who claimed he was the victim of unconstitutional
retaliation for complaints about a search warrant.
The National Whistleblower Center and other groups representing public employees
issued statements deploring the decision and warning that it would deter
employees from taking risks to expose waste and fraud.
But Daniel P. Westman, a lawyer with the firm of Morrison & Foerster who advises
employers on whistle-blower issues, said in an interview that the decision did
little more than affirm the status quo by ''rejecting a very overreaching
opinion'' by a federal appeals court. He said ''smart employers'' would now be
sure to encourage the use of internal complaint mechanisms to deter employees
from taking their complaints public and thus enjoying the prospect of greater
constitutional protection.
Justice Kennedy's opinion drew a formal distinction between two kinds of speech
by public employees: statements they make ''pursuant to their official duties''
and those made as citizens contributing to ''the civic discourse.'' The first
category was not protected by the First Amendment's guarantee of free speech,
Justice Kennedy said, while the second retained ''the prospect of constitutional
protection.''
The dissenting justices warned that this distinction would often be unclear in
practice and difficult for lower courts to apply.
''The notion that there is a categorical difference between speaking as a
citizen and speaking in the course of one's employment is quite wrong,'' Justice
John Paul Stevens said in a dissenting opinion.
The other dissenters were Justices David H. Souter, Stephen G. Breyer and Ruth
Bader Ginsburg.
Chief Justice John G. Roberts Jr. joined the majority opinion, as did Justices
Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. Justice Alito was not on
the court when the case, Garcetti v. Ceballos, No. 04-473, was argued last
October. The case had not been decided by the time Justice Sandra Day O'Connor
retired and Justice Alito took his seat in January.
When the court ordered a second argument, held on March 21, the implication was
that the eight remaining justices who had heard the case the first time were
deadlocked and that Justice Alito would break the tie. The reality may have been
more complex.
Justice Breyer made it clear in his separate dissenting opinion that he was
satisfied with neither Justice Kennedy's majority opinion nor Justice Souter's
principal opinion for the other three dissenters, and his vote may have been
uncertain until late in the process. Justice Breyer would have emphasized the
fact that as a lawyer, the plaintiff, Richard Ceballos, had special ethical
obligations to speak up if he found problems with a pending prosecution and so
deserved special constitutional protections.
In his lawsuit, Mr. Ceballos claimed that he was given an unwelcome transfer and
was denied a promotion after taking several steps to complain about the apparent
unreliability of an affidavit that had provided the basis for a search warrant
in a case the office was prosecuting. He told his supervisors of his concerns,
and wrote a memorandum recommending dismissal of the case. There was a heated
meeting, after which his concerns were rejected.
Mr. Ceballos later testified for the defense at a court hearing, and spoke about
the issue at a meeting of the Mexican American Bar Association.
The Supreme Court's focus, however, was entirely on the initial internal
memorandum because the United States Court of Appeals for the Ninth Circuit, in
ruling for Mr. Ceballos, found that the document was constitutionally protected
speech and did not then go on to consider the constitutional status of his other
actions.
In overturning the Ninth Circuit's judgment, Justice Kennedy's opinion said that
in writing the memorandum, Mr. Ceballos was simply carrying out the normal
duties of his job, which included advising his supervisors on how to proceed
with pending cases.
''We hold that when public employees make statements pursuant to their official
duties,'' Justice Kennedy said, ''the employees are not speaking as citizens for
First Amendment purposes, and the Constitution does not insulate their
communications from employer discipline.''
To hold otherwise, he continued, would be to give employees ''a right to perform
their jobs however they see fit,'' as a matter of constitutional law. It would
''commit state and federal courts to a new, permanent and intrusive role'' of
overseeing internal communications in government workplaces, the justice
concluded.
The lower courts will now consider whether Mr. Ceballos was performing his
normal duties when he testified at the hearing and spoke to the bar association.
Justice Souter, in his dissenting opinion, said that these were not obviously
part of the prosecutor's normal duties and that they needed to be analyzed
independently.
If they are found to be ''citizen'' speech, under the dichotomy the court
established, these comments will be analyzed under a 1968 Supreme Court
precedent that set up a balancing test for whether a public employee's speech is
constitutionally protected. Courts weigh the employee's interest in commenting
on matters of public concern against the employer's interests as a manager.