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Supreme Court: No 1st Amendment protection for Whistleblowers
Posted by: McQ on Tuesday, May 30, 2006

Sure to have a chilling effect?
A divided Supreme Court ruled Tuesday that government whistleblowers have no First Amendment protection for comments involving their jobs.

The justices ruled 5-4 against Richard Ceballos, a supervisor in the Los Angeles District Attorney's Office, who claimed that he had been subject to retaliation for a memo that said a police affidavit for a search warrant contained misrepresentations. The court, overruling an appellate decision, found that public employees making statements in the course of official duties "are not speaking as citizens for First Amendment purposes."

"Without a significant degree of control over its employees' words and actions, a government employer would have little chance to provide public services efficiently," the court said in a summary of the decision.

The National Whistleblower Center said that the ruling deprives whistleblowers of almost all protection.

"The ruling is a victory for every crooked politician in the United States," said Stephen Kohn, the center's director.
There's a "National Whistleblower Center?"

Yes there is.

Part of the Alito effect?

Anyway, your comments and opinions are solicited.
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Previous Comments to this Post 

Whistleblower or leaker?
Written By: shark
URL: http://
You need to go ask the National Whistleblower Center. I understand, given the ruling, their having a "going out of business" sale on coffee mugs.
Written By: McQ
This issue seems to be generating a lot of hype, but I don’t really see what all the fuss is about. Nowhere does the first amendment protect you from the ramifications of ones decision to utilize their right to free speech. The first amendment certainly dosent offer employment protections.

This is an issue to be handled by Whistle Blower Protection laws, not the first amendment. Of course, most people seem incapable of understanding the difference between proper application of constitutional law and favoring their particular political cause du jour. If one does not beleive that the first amendment is applicable in this case, that must by default means that one is in favor of suppressing whistle blowers. Such is the world of politics, I suppose.

Written By: Rosensteel
URL: http://
I haven’t read the ruling, and I know next to nothing about the case, so take my commnt with a box of salt. In any event, I seem to recall from my Bar review course that public employees have not enjoyed First Amendment protections, or at least very limited protection, when they are acting in their official capacity.

There seems to be a lot attention being paid to this among the blawgs, though, so I’m obviously missing a bunch of the nuance.

Anywho, there’s my two cents ... Canadian.
Written By: MichaelW
I don’t see this as having any effect upon whistleblowing at all. When someone becomes a whistleblower, they usually approach the FBI or some oversight agency and reveal everything anonymously. Then they might become known after indictments have been handed down.
This ruling will have no effect upon that.
Written By: kyle N
This case is going to be hyped as another step toward fascism being nigh, but based on my cursory reading of a few law blogs — and I will change my mind if some other legal wags point out something critical I have over-looked — it really is not a big deal. All it means is that when you have your employee hat on, you have to write your reports to those who are entitled to them in a manner that conforms with the "team player" rules all employers, public and private, expect the wage slaves to follow. Perhaps there should be an independent grievance procedure for what the platinifff wrote that got him in hot water, or surely he could have gone to Internal Affairs, but he put it in a regular report which apparently ticked off his betters. (Maybe he is a crank and pain in the @ss who tosses scandalous crap in his reports all the time, who knows; until the case is available in html I can’t read it myself, and for now know only the scant parsings at SCOTUSblog).

Nothing in the facts of the case would have prevented the same employee from writing a letter to the editor stating that he thinks some cops swear false affidavits. (OTOH, he surely should have an obligation to inform the relevant court.) But if he writes it to his suprevisor and its seems, oh, insubordinate or whatever, the supervisor is entitled to make life difficult (but is not so entitled for exercising free speech rights with one’s citizen’s hat on via a letter to the editor).

The courts really can’t be put in the position of second-guessing all personnel decisions involving public employees who claim "it was something I said to my boss," and wrapping themselves in the First Am. If you are burning to say it, go find a reporter or write a letter to the editor, if your boss is the sort that will not suffer accusations against others gladly.
Written By: Mona
URL: http://

Not sure why you couldn’t read a pdf file, but the case (in pdf) is here.
Written By: D.A. Ridgely
URL: http://
I’m not quite as sanguine as Mona, but up front, I think those saying "no first amendment protections" are overselling it a bit - criminal sanctions are still not available (absent an independant violation) - they can’t send an ADA to jail for merely criticizing his boss.

That said, there are troubling aspects here, mostly stemming from the ’government action’ aspect of an governmental employee being fired/disciplined - on the facts of this case it appears that the plaintiff was complaining about illegal behavior on the part of a sheriff. We certainly want this to happen (though I suppose, as Rosensteel suggests, that whistle blower laws are a better avenue.)

But, specifically in the context of law enforcement or other use of the government’s coercive powers, it doesn’t seem out of line to suggest that internal complaints about overreaching should receive some protection. In that way, this case seems of a slightly different category then a technocrat bitching about his recomendations not being followed or even a statutory mandate not being observed. I can’t quite articulate the difference, and maybe it shouldn’t make a constitutional difference, but I think it’s important to recognize the concern.
Written By: Pooh
To me it sounds like the real risk is in the interpretation, not the ruling itself. Surely some idiot is going to take it to mean they can nail whistleblowers to the wall, but the meat of the actual case doesn’t lean that far.

Though, the reasoning that got them there offended me. I posted about it on my site, case anyone cares.
Written By: b-psycho
It would seem to me that you can gain a little perspective by comparing how whistle-blowing cases are handled to how "blow my whistle" cases are handled. Retaliatory firings against people who report sexual misconduct are prohibited and can lead to serious consequences. The rub is, you have to be able to demonstrate that the firing was in fact retaliatory. That is a fairly high burden of proof and usually not easy to do.

In the case of a whistle-blower who reports illegal behavior I think the same protection should apply and the same burden of proof.

At least that keeps the wrong-doers from being blatant about it and every once in a while results in justice. Once in a while is better than never.
Written By: Brian Jones
URL: http://

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