The Supreme Court heard arguments on Wednesday in a case that may have a lasting impact on would-be whistleblowers throughout the government.
The justices must decide whether to overturn or let stand a 9th U.S. Circuit Court of Appeals ruling that protects, under the First Amendment, public sector employees’ speech about their workplaces.
The case, Garcetti v. Ceballos, dates back to 2000. Richard Ceballos, then a deputy district attorney in Los Angeles County, was informed by a defense attorney that the arresting sheriff in a case may have lied to obtain a search warrant.
Ceballos sent a memo summarizing his investigation of the matter to his supervisors, who also agreed the deputy sheriff had fudged the warrant affidavit. However, the then-head deputy district attorney decided to push ahead with the criminal case, even as the search warrant was being challenged.
The judge declined to dismiss the case despite the questions surrounding the warrant, and Ceballos was subpoenaed by the defense to testify about his memo at the hearing.
Consequently, Ceballos alleges he was subject to retribution by the district attorney’s office. In a lawsuit, Ceballos claimed he had been demoted and transferred out to another branch as punishment for testifying. He claimed that by retaliating against him, the district attorney’s office had violated his First Amendment rights.
Bush administration lawyer Dan Himmelfarb said workers with grievances are able to file civil service complaints when they’ve been punished unfairly, but employees are not entitled to free speech coverage for things they say in the scope of their job, like writing a memo.
In the lively argument on Wednesday, justices questioned whether government employees should get blanket protection for their speech.
“We live in a world where people are leaking things all the time,” said Justice Stephen Breyer.
In recent years, the Supreme Court has not been particularly sympathetic to arguments similar to Ceballos’. Writing for the majority in 1994’s Waters v. Churchill, which also focused on unlawful firings from government employment, Justice Sandra Day O’Connor held:
“The extra power the government has in this area comes from the nature of the government’s mission as employer. … When someone who is paid a salary so that she will contribute to an agency’s effective operation begins to do or say things that detract from the agency’s effective operation, the government employer must have some power to restrain her.”
If the 9th Circuit ruling is left intact, supporters of the district attorney’s office argue agencies would be flooded with lawsuits from ex-employees alleging they were let go for something they said or wrote.
Even those who believe whistleblowers deserve some kind of protection might agree that a deluge of litigation is not a desired result.
“It is a normal part of the employment process to evaluate one’s subordinates,” said Eugene Volokh, a professor at UCLA Law School and editor of the Volokh Conspiracy blog.
“Government has to have the flexibility to say, ‘We’re going to dismiss this person, not because we think he’s disloyal but because we think he is [for example] a bad lawyer,'” Volokh said, adding that agencies should also be able to fire those who make false accusations of wrongdoing.
Ceballos argues that elimination of First Amendment protection for work-related speech by government employees could have a chilling effect on those who uncover serious wrongdoing. And while there is already federal whistleblower protection on the books, it has been enforced differently throughout the country, Ceballos supporters say.
“The reason we need to hold onto First Amendment rights and strengthen them is that the protections are not adequate, and we don’t want to depend on fickle legislatures,” said Joanne Royce, general counsel for the Government Accountability Project. “The legislation is very different [in different jurisdictions], and sometimes is enforced well and sometimes not.”
Sen. Susan Collins, R-Maine, has co-sponsored a bill amending the 1994 Whistleblower Protection Act to “cover any disclosure of information — without restriction to time, place, form, motive or context — including a disclosure made in the ordinary course of an employee’s duties.”
Collins said Tuesday in a statement to FOXNews.com, “Individual disclosures of waste, fraud and abuse [are] critical to Congress’ ability to protect the public interest. Full protection against retaliation based on such disclosures is essential for effective oversight.”
In a joint editorial published in the New York Times on Monday, GAP spokesman Dylan Blaylock and former FBI agent Coleen Rowley warned: “A ruling against First Amendment rights would muzzle those who know security issues better than any oversight body officials can hope to create. We cannot rely solely on Congress to keep tabs on absolutely everything happening under them — such a task is impossible.”
Rowley, whose warnings to the FBI about terrorist suspect Zacarias Moussaoui (search) went unheeded before the Sept. 11, 2001, terror attacks, is running as a Democrat for a House seat in Minnesota.
But as eager as advocates for transparent government are to see the court lay down some guidelines, Garcetti v. Ceballos, is not exactly a classic whistleblower case.
“Ceballos would have a much better argument if the trial judge had agreed with him” and thrown out the criminal case, said Ronald Rotunda of George Mason University Law School. In other words, the fact that the trial judge didn’t see egregious wrongdoing by the district attorney may persuade the justices to rule against him.
Moreover, the court has always made the distinction between employees and private citizens, and there may be little in the Garcetti case to persuade the justices to blur that line.
“If he was just a bystander, he would be protected by the First Amendment but he’s an employee,” Rotunda said. “Employees don’t have a right to be insubordinate.” The court has stated in the past that while employees are entitled to free speech as citizens, as citizens they are not entitled to government jobs.
Another party with a keen interest in Garcetti is the public school system, which has been burdened with a flurry of politically thorny issues ranging from evolution and sex education.
“Everyone agrees that Ceballos was exposing police corruption, we don’t disagree about the public concern,” said Lisa Soronen, a staff attorney for the National School Boards Association, which filed an amicus brief for the plaintiff. “But we don’t agree that his speech was protected by the First Amendment.”
“The concern is that a teacher might have First Amendment protection” when contradicting school curriculum, Soronen said. “Curriculum in public schools would be a public concern, but it’s not the teacher’s place to use the classroom as platform to discuss issues that are arguably topics of public concern.”
Because both sides of the issue have a legitimate claim, the court may be tempted to decide the case narrowly, leaving both sides without a clear-cut, “bright line” rule.
“This involves a fairly narrow and technical issue of First Amendment law, policing the line between free speech rights of public employees and the right of government as employer to direct the public speech of those employees,” Neil Richards of the Washington University School of Law.
And the fact that O’Connor may not get a say in the case since she may retire before it is decided makes the court’s decision all the more unpredictable. But Richards suspects the court took up Garcetti with a purpose.
“The Supreme Court, if you look at the [conservative] judges in the majority, usually grant certioriari to 9th Circuit cases to reverse them,” Richards said. The San Francisco-based 9th Circuit has become the target of conservatives’ ire, most explosively for ruling that reciting the Pledge of Allegiance in public schools was unconstitutional because it includes the words “under God.” That judgment was later reversed by the Supreme Court.
Richards clarified: “This court feels the 9th Circuit has gone bonkers.”
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