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The Supreme Court ruled Tuesday that the First Amendment does not shield public employees from disciplinary action for job-related speech.

By a vote of 5-4, the court restricted civil servants' ability to file lawsuits against agency retaliation over the disclosure of government misconduct.

Justice Anthony Kennedy wrote the majority opinion in the case, Garcetti v. Ceballos, which concerned a work-related memorandum written by Los Angeles County prosecutor Richard Ceballos about possible police misconduct. Ceballos said that as a result of his memo, he was demoted and reassigned to an office farther away from his home.

The high court said the office could take action based on Ceballos' memo.

"When public employees make statements pursuant to their official duties," Kennedy said in his decision, "the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline."

Justices John Roberts, Antonin Scalia, Clarence Thomas and Samuel Alito joined Kennedy in overturning a lower court decision on this case. The Supreme Court found that the U.S. Court of Appeals for the 9th Circuit's earlier ruling in favor of Ceballos would have committed the judicial system to an overly intrusive role in overseeing communication among government employees.

It will be difficult for government workers to discern when speech is part of the job, said Joanne Royce, general counsel for the Government Accountability Project, a nonprofit whistleblower advocacy group.

Tuesday's ruling will "inevitably have a chilling effect on the willingness of public employees to risk their livelihood to try to improve the place where they work," Royce said. "If they blow the whistle or raise issues of concern -- fraud, waste, abuse within their agencies -- they can be fired for it. They have no protection under the law."

A dissenting opinion, written by Justice John Paul Stevens, argued speech's relation to a job should be irrelevant to its First Amendment protections.

"It is senseless to let constitutional protection for exactly the same words hinge on whether they fall within a job description," Stevens said. "Moreover, it seems perverse to fashion a new rule that provides employees with an incentive to voice their concerns publicly before talking frankly to their superiors."

Lawyers for the Justice Department, Office of Personnel Management and other federal agencies submitted a brief in support of the Los Angeles County government, arguing that employers' personnel decisions are based on an employee's performance of duties, and the First Amendment does not have a say in that determination.

Royce said her group, which believes that whistleblowers protect the government against fraud and corruption, will push Congress to strengthen the whistleblower protections already on the books for federal employees.

COMMENTS

• Dear ER/LR, I certainly don't work in a vacuum and I've seen this whistleblower issue from all sides, including having been a whistleblower myself. This is the worst Supreme Court decision since the one from Toyota which could have been easily resolved with a $15 stepping stool instead of a Supreme Court decision making the Americans with Disability Act a joke. Now we have a decision making the Whistleblower Protection Action irrelevant. My advice to that Navy Welder who reported deficient welds and saved the Navy a ship- don't bother, your job isn't protected because your blowing the whistle was done as a Navy welder and is not protected by the Constitution. Who would risk their job and livelihood now!!!! ER/LR Specialist-- let's hope you never have to use the WPA yourself or bring an IRA to MSPB. Happy trails or should I say trials, HR Specialist GovExec.com reader Posted June 2, 2006 8:35 AM
• "Every case of whistleblowing that I have observed that was proven factual has been upheld..." Nonsense. The title of the legislation should be changed to read, "The Whistleblower Is Unprotected Act." A whistleblower has virtually no chance of overcoming the agency's personnel action. The system that exists, i.e., Office of Special Counsel, Merit Systems Protection Board, and the U.S. Court of Appeals for the Federal Circuit, does not protect whistleblowers. The only way that whistleblowers will ever receive a fair hearing is in front of a jury of their peers -- the point being that the various government agencies charged with protecting whistleblowers have not fulfilled their responsibilities in accordance with the law and are unlikely to do so in the future. Here is the typical profile of a whistleblower: Unblemished record of superior performance, promoted ahead of peers, position of significant responsibility, honest, hard working, idealistic, believes that the government should serve the people ... the argument that whistleblowers are poor performers and resort to using the legislation to protect themselves is false. An individual who claims to know something about the system would realize that it provides no protection for anyone. GovExec.com reader Posted June 2, 2006 8:46 AM
• This is all part of the plan to ensure that government employees do not work for the taxpayer but rather for the political appointees and the president. The new NSPS pay system is designed to punish employees who do not conform with political policies just as this Supreme Court decision is designed to allow punishment of civil servants who are watching out for the taxpayers' interest. A State Department employee was just transferred for questioning U.S. payments to Somali Warlords though State's "dissent channels." I guess you could call the Supreme Court decision Blackhawk Down the Tubes. There are no safe dissent channels in the U.S. government. Steve Brennan Posted June 2, 2006 2:56 PM