Crying Foul Over Free Speech

Advocates are riled about First Amendment ruling, but legal protections haven't changed.

After the Supreme Court ruled in May that government whistleblowers cannot use the First Amendment free speech clause to challenge personnel actions against them arising out of statements made pursuant to their official duties, all manner of hyperventilating ensued.

In Garcetti v. Ceballos, Richard Ceballos, an assistant district attorney in Los Angeles, asserted that his First Amendment right to freedom of speech was violated when he was transferred to a less desirable location, assigned different duties and denied a promotion after saying in a memo and during a meeting that a sheriff's officer falsified an affidavit. Although the U.S. District Court for the Central District of California rejected his claim, the 9th U.S. Circuit Court of Appeals reinstated it. But the Supreme Court did not buy his argument, striking it down in a 5-4 vote.

Stephen Kohn, chairman of the National Whistleblower Center in Washington, called it "a victory for every crooked politician." Joanne Royce, general counsel for the Government Accountability Project, a nonprofit whistleblower advocacy group in Washington, agrees. The 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," she was quoted as saying in a May 30 article.

But federal employees rarely use the First Amendment in their cases against management in the first place. They mostly rely on the Whistleblower Protection Act. This law-Title 5, U.S. Code, Section 2302-which the court said is part of a "powerful network of legislative enactments-such as whistleblower protection laws," remains unchanged. A whistleblower simply can follow the rules in 5 U.S.C. 2302 and the case law that explain what constitutes a protected disclosure and the process for disputing reprisals before the Merit Systems Protection Board.

When employees express opinions outside of their official duties, say writing a letter to the editor or discussing politics with a co-worker, they will continue to enjoy the protection of the Supreme Court's long-standing Pickering-Connick rule. Based on the 1968 case of Pickering v. Board of Education, the ruling applies to an employee who speaks as a citizen on a matter of public concern. Marvin L. Pickering was a teacher in Will County, Ill., who won back his job after being fired for writing a letter to a newspaper criticizing the local school board on a bond issue. "The question becomes whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public," the court ruled in Pickering. If government employees speak as citizens, they face "only those speech restrictions that are necessary for their employers to operate efficiently and effectively," the court said.

But Ceballos made statements in the course of his duties. "When public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes," the Supreme Court ruled.

So nothing is lost. The ruling simply means the appropriate avenues for aggrieved whistleblowers that already exist will continue, and that unhappy employees cannot turn every dispute with management into a constitutional right to say whatever they wish whenever they want. Such a free-for-all would "commit state and federal courts to a new, permanent and intrusive role, mandating judicial oversight of communications between and among government employees and their supervisors in the course of official business," the court said. The Supreme Court also observed that by entering public service, one must accept some limits on freedom-loyalty to one's employer is a duty.

Stay up-to-date with federal news alerts and analysis — Sign up for GovExec's email newsletters.
Close [ x ] More from GovExec

Thank you for subscribing to newsletters from
We think these reports might interest you:

  • Going Agile:Revolutionizing Federal Digital Services Delivery

    Here’s one indication that times have changed: Harriet Tubman is going to be the next face of the twenty dollar bill. Another sign of change? The way in which the federal government arrived at that decision.

  • Cyber Risk Report: Cybercrime Trends from 2016

    In our first half 2016 cyber trends report, SurfWatch Labs threat intelligence analysts noted one key theme – the interconnected nature of cybercrime – and the second half of the year saw organizations continuing to struggle with that reality. The number of potential cyber threats, the pool of already compromised information, and the ease of finding increasingly sophisticated cybercriminal tools continued to snowball throughout the year.

  • Featured Content from RSA Conference: Dissed by NIST

    Learn more about the latest draft of the U.S. National Institute of Standards and Technology guidance document on authentication and lifecycle management.

  • GBC Issue Brief: The Future of 9-1-1

    A Look Into the Next Generation of Emergency Services

  • GBC Survey Report: Securing the Perimeters

    A candid survey on cybersecurity in state and local governments

  • The New IP: Moving Government Agencies Toward the Network of The Future

    Federal IT managers are looking to modernize legacy network infrastructures that are taxed by growing demands from mobile devices, video, vast amounts of data, and more. This issue brief discusses the federal government network landscape, as well as market, financial force drivers for network modernization.

  • eBook: State & Local Cybersecurity

    CenturyLink is committed to helping state and local governments meet their cybersecurity challenges. Towards that end, CenturyLink commissioned a study from the Government Business Council that looked at the perceptions, attitudes and experiences of state and local leaders around the cybersecurity issue. The results were surprising in a number of ways. Learn more about their findings and the ways in which state and local governments can combat cybersecurity threats with this eBook.


When you download a report, your information may be shared with the underwriters of that document.