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 GovExec.com 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.

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