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BREAKING: SCOTUS Muffling Whistle Blowers?


In a 5-4 decision today in Garcetti et al v. Richard Ceballos (decision via the Court website, and is in PDF format), the Supreme Court restricted some First Amendment rights of whistleblowers who work in a public context.  I haven’t yet had a chance to read through the whole of the decision, but I wanted to get information to everyone up front because I knew there would be a lot of readers who were interested in this.

Scotusblog does a great initial breakdown of the decision, and some of the prior decisions relied on by the majority and minority.

The Court issued its opinion today in Garcetti v. Ceballos, No. 04-473, originally argued in the Ocotber sitting and then reargued after Justice Alito joined the Court. Justice Alito’s was the fifth vote in favor of reversal (although we don’t know for certain whether the judgment or opinion would have been different with Justice O’Connor participating). Justice Kennedy wrote the majority opinion, which the Chief Justice and Justices Scalia, Thomas and Altio joined. As I predicted here, Justice Souter — who likely was assigned to write the majority before Justice O’Connor’s retirement — wrote a dissent, joined by Justices Stevens and Ginsburg. Justices Stevens and Breyer each also filed dissenting opinions….

Today, the Court took that very signifiant step, holding that "when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline." This apparently means that employees may be disciplined for their official capacity speech, without any First Amendment scrutiny, and without regard to whether it touches on matters of "public concern" — a very significant doctrinal development….

The WaPo has more. As does the AP (via LATimes). And the NYTimes.

The implications for issues like the NSA revelations and others ought to be obvious, but consider this:

Souter, writing in dissent, said he agreed that "a government employer has substantial interests in effectuating its chosen policy and objectives, and in demanding competence, honesty and judgment from employees who speak for it in doing their work."

But, he wrote, "I would hold that private and public interests in addressing official wrongdoing and threats to health and safety can outweigh the governments stake in the efficient implementation of policy and when they do public employees who speak on these matters in the course of their duties should be eligible to claim First Amendment protections."

It’s a fine line between keeping information potentially harmful if exposed to the public eye behind a wall of necessary secrecy and suppression of revelations of lawbreaking and/or wrongdoing in a CYA effort on the part of those in a supervisory position who don’t want their actions exposed to public sunshine. 

When you add in the fact that treading cautiously has never been the hallmark of this particular administration, nor has restraint in dealing with people perceived as political threats or enemies, you get a sense of the magnitude of this decision and its implications.

More on this as I get time to read through the whole of the opinion and the dissents.  That the decision came down as I was reading this LATimes story about dissenters in Russia being institutionalized in large numbers again is ironic at best.

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Christy Hardin Smith

Christy Hardin Smith

Christy is a "recovering" attorney, who earned her undergraduate degree at Smith College, in American Studies and Government, concentrating in American Foreign Policy. She then went on to graduate studies at the University of Pennsylvania in the field of political science and international relations/security studies, before attending law school at the College of Law at West Virginia University, where she was Associate Editor of the Law Review. Christy was a partner in her own firm for several years, where she practiced in a number of areas including criminal defense, child abuse and neglect representation, domestic law, civil litigation, and she was an attorney for a small municipality, before switching hats to become a state prosecutor. Christy has extensive trial experience, and has worked for years both in and out of the court system to improve the lives of at risk children.

Email: reddhedd AT firedoglake DOT com