Muzzling Government Whistleblowers

For the nation’s 21 million government workers, yesterday was not a particularly good day. In an opinion authored by Justice Kennedy and joined by the rest of the emerging conservative bloc (Roberts, Alito, Thomas and Scalia), the Supreme Court ruled 5-4 that the First Amendment offers no protection against retaliation to public employees who, in the course of their duties, blow the whistle on waste, fraud or corruption. Public auditors fired after discovering and disclosing the embezzlement of municipal funds? Police officers demoted after reporting illicit activities by public officials? County engineers terminated after revealing that contractors’ work wasn’t up to snuff? None of them enjoy constitutional protection any longer. Nor do any other government workers in a dizzying array of whistleblower scenarios.

The decision in Garcetti v. Ceballos was the first where Justice Alito cast the deciding vote. The decisiveness of that vote, and the possibility that the result might have been different if Justice O’Connor were still around, is underscored by the fact that the case had to be re-argued following Justice Alito’s ascension to the Court. Re-argument was presumably necessary only because, after Justice O’Connor’s departure, Justice Alito was needed to break a 4-4 tie. Justices Stevens, Souter and Breyer each wrote dissents. Justices Ginsburg and Stevens joined in Justice Souter’s opinion.

Richard Ceballos, a long-serving deputy district attorney in Los Angeles County, concluded that a police officer lied when applying for a key search warrant in one of the cases Ceballos was overseeing. Ceballos wrote a memo to a superior about it, recommending that the case be dismissed. After a series of other events where Ceballos moderated his criticism (pursuant to supervisors’ wishes) but otherwise stood the ground that he felt his professional and constitutional obligations as a prosecutor required of him, Ceballos was demoted from supervising deputy to trial attorney, removed from the only murder case he was assigned to, denied a promotion, and transferred to a remote office requiring longer commuting. Ceballos claimed these adverse actions constituted retaliation for blowing the whistle on the allegedly wayward officer.

For procedural reasons, yesterday’s decision was limited to whether Ceballos enjoyed constitutional protection for the memo. Up until now, nearly 40 years of precedent counseled that, in making that determination, a court was to weigh the interests of both Ceballos and the general public in exposing the dummied-up search warrant request against the government’s interest in maintaining a disciplined, efficient workplace. That’s the textured approach yesterday’s dissenters stayed with, ruling in Ceballos’ favor. The majority opted instead for absolutism, carving out a rather massive, one-size-fits-all exception to the “weighing-of-interests” precedents. So much for Chief Justice Roberts’ recent plea for deciding cases on the narrowest possible grounds.

In the majority’s view, employees who make statements pursuant to their ordinary work duties never speak as private citizens and thus never possess First Amendment rights. “Too absolute?” “Misguided” even? The dissenters sure saw it that way. “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,” said Justice Stevens. Using more charitable language, Justice Souter called it a “strange” distinction, one that neglects the self-evidently personal interest of those who have chosen public service in making sure that the government acts right, as well as the societal interest in hearing the unvarnished truth on important issues from well-informed government workers.

An equally big problem with this “strange” distinction, the dissenters charged, is that it produces a blanket, rights-diminishing rule that the majority never cogently justifies (leading the New York Times to conclude that the distinction seems like nothing more than a convenient cover for chipping away at First Amendment protections). Categorically favoring employee discipline over legitimate whistleblowing will at least help maintain workplace orderliness, right? Not exactly. In fact, not at all. Under the majority’s new rule:

• there is what Justice Stevens calls a “perverse” incentive for public employees to air their complaints publicly, where they still enjoy First Amendment protection, before looking to in-house complaint procedures. Otherwise, they’ll just clam up and seethe. Our guess is that most employee handbooks say that’s not really conducive to a harmonious or efficient workplace, much less one that operates waste- and fraud-free.

• the people who know best when something on the job is wrong – i.e., the people who have the duty of making sure it’s right – are now the very people whom the Court has pulled the rug out from under. By protecting the know-nothings but not the know-it-alls, the new rule runs at cross purposes with the important goal of ensuring the efficacy of government operations.
• as Justice Breyer emphasizes, government employers may put pressure on officials, like prosecutors, to skirt the ethical and constitutional rules that obligate them to disclose untoward conduct. Again, not exactly conducive to a healthy work environment.

Well, then, at least the new rule will prevent a flood of constitutional litigation by unjustifiably disgruntled government workers, yes? Again, no. First off, despite the majority’s overwrought bluster, the dissenters were not, in any way, advocating a rule that would turn every public employee complaint into a constitutional matter. Second, even though certain courts have long employed the “weighing-of-interests” test for claims like Ceballos’, they have never experienced a lawsuit deluge. Finally, by placing the focus on whether a whistleblower is acting pursuant to his official duties, the majority’s new rule does not diminish the courts’ role; it merely shifts the initial judicial inquiry from whether the interests served by a particular whistleblower are sufficiently strong to warrant protection to whether whistleblowing is part of a public employee’s job. Asserting that it is plugging a dike in one spot, the majority produces leaks in others.

As Justice Stevens said, the answer to the question whether public employees who express themselves as part of their job duties should have First Amendment protections should be a measured “sometimes,” not a categorical “never.” By going for the gusto, the Court majority not only diminished the free speech rights of government workers, it undermined the country’s abiding interest in safe, competent and corruption-free government offices.

Garcetti v. Ceballos, No. 04-473, slip op. (U.S. Sup. Ct. Decided May 30, 2006)