From high court, warning to whistle-blowers

The justices find that public workers' criticisms aren't 'protected' speech.

By , Staff writer of The Christian Science Monitor

Government employees do not enjoy free-speech protection against being disciplined for exposing official misconduct at work.

In an important decision that will make it more difficult for some government whistle-blowers, the US Supreme Court ruled Tuesday that public workers who make allegations of misconduct in official reports and in work-related statements may be disciplined for their speech without violating First Amendment protections.

The 5-to-4 decision came in the case of Richard Ceballos, a supervising district attorney in Los Angeles. Mr. Ceballos had raised questions in a memo about whether a deputy sheriff had lied to obtain a search warrant. Ceballos later testified for defense attorneys who were attacking the validity of the search warrant and seeking to have the case against their client dismissed.

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Other prosecutors in Ceballos's office disagreed with his assessment, and a trial judge ruled the case could go forward.

Ceballos was reassigned. He later filed a federal lawsuit saying his supervisers demoted him in retaliation for his memo and testimony on the search-warrant issue.

In his suit, Ceballos claimed his actions were protected by the First Amendment.

A federal judge dismissed the suit, but the Ninth US Circuit Court of Appeals ruled that the Ceballos memo was protected speech.

On Tuesday, the Supreme Court reversed that ruling.

"When public employees make statements pursuant to their official duties, [they] are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline," writes Justice Anthony Kennedy for the majority.

The majority justices drew a distinction between work-related speech and the speech of a concerned citizen.

"When an employee speaks as a citizen addressing a matter of public concern, the First Amendment requires a delicate balancing of the competing interests surrounding the speech and its consequences," Justice Kennedy writes. "When, however, the employee is simply performing his or her job duties, there is no warrant for a similar degree of scrutiny."

Joining Kennedy's majority opinion were Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas, and Samuel Alito.

The case had first been argued when Justice Sandra Day O'Connor was on the court. It was set for reargument after Justice Alito joined the high court, suggesting the justices were split 5-4 on the case.

In a dissent, Justice John Paul Stevens called the majority opinion "misguided."

"The proper answer to the question 'whether the First Amendment protects a government employee from discipline based on speech made pursuant to the employee's official duties' is 'Sometimes,' not 'Never,' he writes.

"Of course a supervisor may take corrective action when such speech is inflammatory or misguided," Justice Stevens writes. "But what if it is just unwelcome speech because it reveals facts that the supervisor would rather not have anyone else discover?"

Kennedy said there are protections other than the First Amendment that safeguard whistle-blowers and others from supervisers who might use their managerial powers inappropriately.

Justice David Souter, in a separate dissent joined by Stevens and Justice Ruth Bader Ginsburg, said he agreed with the majority 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."

Justice Souter adds: "But I would hold that private and public interests in addressing official wrongdoing and threats to health and safety can outweigh the government's stake in the efficient implementation of policy."

When those interests do outweigh the government's stake, Souter writes, "public employees who speak on these matters in the course of their duties should be eligible to claim First Amendment protection."

Also on Tuesday, the Supreme Court agreed to examine whether an Oregon jury overstepped constitutional bounds when it ordered the Philip Morris tobacco company to pay $79.5 million in damages to the family of a longtime smoker.

The jury made the award to the family of Jesse Williams, who had smoked three packs of Marlboro cigarettes a day until he died of lung cancer in 1997.

At issue in the case is whether the jury award is in proportion to the injury suffered. The case, Philip Morris v. Williams, won't be heard by the court until next fall.

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