Supreme Court Trims Government Whistle-blower Rights

The U.S. Supreme Court has scaled back protections for government workers who blow the whistle on official misconduct with a 5-4 decision in which new Justice Samuel Alito cast the deciding vote.

In a victory for the Bush administration, justices said the 20 million public employees do not have free-speech protections for what they say as part of their jobs.

Critics predicted 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.

Supporters said it will protect governments from lawsuits filed by disgruntled workers pretending to be legitimate whistle-blowers.

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 Alito’s arrival.

A year ago, O’Connor authored a 5-4 decision that encouraged whistle-blowers to report sex discrimination in schools. The current case was argued in October but not resolved before her retirement in late January.

A new argument session was held in March with Alito on the bench. He joined the court’s other conservatives in Tuesday’s decision, which split along traditional conservative-liberal lines.

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,” Kennedy said.

The ruling overturned an appeals court decision that said prosecutor Richard Ceballos of Los Angeles County, California, was constitutionally protected when he wrote a memo questioning whether a county sheriff’s deputy had lied in a search warrant affidavit. Ceballos had filed a lawsuit claiming he was demoted and denied a promotion for trying to expose the lie.

Kennedy said if the superiors thought the memo was inflammatory, they had the authority to punish him.

“Official communications have official consequences, creating a need for substantive consistency and clarity. Supervisors must ensure that their employees’ official communications are accurate, demonstrate sound judgment, and promote the employer’s mission,” Kennedy wrote.

Stephen Kohn, chairman of the National Whistleblower Center, said: “The ruling is a victory for every crooked politician in the United States.”

Justice David H. Souter’s lengthy dissent sounded as if it might have been the majority opinion if O’Connor still were on the court. “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,” he wrote.

Souter was joined by Justices John Paul Stevens and Ruth Bader Ginsburg. Justice Stephen Breyer also supported Ceballos, but on different grounds.

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. President Bush’s two nominees, Alito and Chief Justice John Roberts, signed onto Kennedy’s opinion but did not write separately.

“It’s a very frightening signal of dark times ahead,” said Tom Devine, legal director for the Government Accountability Project.

Employment attorney Dan Westin said that Kennedy’s ruling frees government managers to make necessary personnel actions, like negative performance reviews or demotions, without fear of frivolous lawsuits.

Ceballos said in a telephone interview that “it puts your average government employee in one heck of a predicament … I think government employees will be more inclined to keep quiet.”

Los Angeles County District Attorney Steve Cooley said in a statement that the ruling “allows public employers to conduct the people’s business without undue disruption and without turning routine personnel decisions into federal cases.”

The court’s decision immediately prompted demands for Congress to strengthen protections for workers.

Kennedy said that government workers “retain the prospect of constitutional protection for their contributions to the civic discourse.” They do not, Kennedy said, have “a right to perform their jobs however they see fit.”