Blowing off the whistleblowers
The Supreme Court on Tuesday made it harder for government employees to file lawsuits claiming they were retaliated against for going public with allegations of official misconduct.
By a 5-4 vote, justices said the nation’s 20 million public employees do not have carte blanche free speech rights to disclose government’s inner-workings. New Justice Samuel Alito cast the tie-breaking vote.
Justice Anthony M. Kennedy, writing for the court’s majority, said the First Amendment does not protect “every statement a public employee makes in the course of doing his or her job.”
The decision came after the case was argued twice this term, once before Justice Sandra Day O’Connor retired in January, and again after her successor, Alito, joined the bench.
Dissenting justices said Tuesday that the ruling could silence would-be whistleblowers who have information about governmental misconduct.
“Public employees are still citizens while they are in the office,” wrote Justice John Paul Stevens. “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.”
The Bush administration had urged the high court to place limits on when government whistleblowers can sue, arguing that those workers have other options, including the filing of civil service complaints.
Kennedy noted in his ruling that there are whistleblower protection laws. The ruling, which had the votes of the court’s conservatives including new Chief Justice John Roberts, showed great deference to the government.
“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.
Even when that employer might be a political employee with an agenda that is inconsistent with or detrimental to the departments mission (see FEMA, the EPA, the CPB, etc.) This is just an invitation to more secretive leaking to reporters.