Whistleblowers Not Protected by 1st Amendment

The Supreme Court ruled today that government employees do not have First Amendment protection for speech made in conjunction with their official duties and may therefore not sue for adverse job action on that basis.

The Supreme Court on Tuesday made it harder for government employees to file lawsuits claiming they were retaliated against for going public with allegations of official misconduct. By a 5-4 vote, justices said the nation’s 20 million public employees do not have carte blanche free speech rights to disclose government’s inner-workings. New Justice Samuel Alito cast the tie-breaking vote.

Justice Anthony M. Kennedy, writing for the court’s majority, said the First Amendment does not protect “every statement a public employee makes in the course of doing his or her job.” The decision came after the case was argued twice this term, once before Justice Sandra Day O’Connor retired in January, and again after her successor, Alito, joined the bench.

The ruling sided with the Los Angeles District Attorney’s office, which appealed an appellate court ruling which held that prosecutor Richard Ceballos was constitutionally protected when he wrote a memo questioning whether a county sheriff’s deputy had lied in a search warrant affidavit. Ceballos had filed a lawsuit claiming he was demoted and denied a promotion for trying to expose the lie.

Dissenting justices said Tuesday that the ruling could silence would-be whistleblowers who have information about governmental misconduct. “Public employees are still citizens while they are in the office,” wrote Justice John Paul Stevens. “The notion that there is a categorical difference between speaking as a citizen and speaking in the course of one’s employment is quite wrong.”

The ruling is significant because an estimated 100 whistleblower retaliation lawsuits are filed each year. The Bush administration had urged the high court to place limits on when government whistleblowers can sue, arguing that those workers have other options, including the filing of civil service complaints.

Kennedy noted in his ruling that there are whistleblower protection laws. The ruling, which had the votes of the court’s conservatives including new Chief Justice John Roberts, showed great deference to the government. “Official communications have official consequences, creating a need for substantive consistency and clarity. Supervisors must ensure that their employees’ official communications are accurate, demonstrate sound judgment, and promote the employer’s mission,” Kennedy wrote. He said government workers “retain the prospect of constitutional protection for their contributions to the civic discourse.” They do not, Kennedy said, have “a right to perform their jobs however they see fit.”

[See also this NYT account]

Lyle Denniston notes that,

The majority said that the deciding factor was not that the deputy expressed his views inside the office, rather than publicly, nor that the memo covered issues that the county attorney’s office handled. The controlling factor, it said, was that his comments were made “pursuant to his official duties. That consideration distinguishes this case from those in which the First Amendment provides protection against discipline.” The deputy, Richard Ceballos, “wrote his disposition memo because that is part of what he was employed to do. He did not act as a citizen in writing it.”

I haven’t seen the opinion itself and the various press accounts of the case I’ve found are sketchy. It’s not entirely clear to me why this case was argued on 1st Amendment grounds, as the idea that employees, even those who work for government, can say whatever they want in performance of their duties and not be fired is absurd.

One would think Ceballos would have much better grounds on administrative appeal of the termination decision as it would appear that he did nothing wrong. If he got what he deemed a credible complaint from a defense attorney about malfeasance on the part of his office, it strikes me as his duty to investigate or report it to the appropriate authorities. That he apparently kept everything in house and simply wrote a memo for his superiors–again, based on what I can gather–that seems praiseworthy rather than a firing offense. Had he gone to the media or otherwise violated protocol, one could understand.

Update: From First Amendment Library:

Los Angeles County deputy district attorney Richard Ceballos may be in trouble for one simple reason: he performed his job exactly as he was supposed to. Informed by a defense attorney in a case being prosecuted by the district attorney’s office that one of the arresting police officers may have lied in a search warrant affidavit, Ceballos vigorously investigated the charge and found evidence of wrongdoing. Respecting the chain of command, Ceballos drafted a memo raising his concerns and recommended dismissal of the case. Since Ceballos could not dismiss the case without supervisor approval, he discussed his concerns with one of his supervisors and provided him with the memo. Ceballos and his supervisors met with the Sheriff’s office to discuss their concerns, but the meeting convinced Ceballos’s superiors to pursue the case despite flaws in the affidavit. Knowing that Ceballos had legitimate concerns about the affidavit, defense counsel in the case subpoenaed Ceballos to testify at the hearing. Ceballos agreed to testify and—pursuant to what he believed were his prosecutorial obligations—provided the memo to defense counsel. When Ceballos was allegedly punished for speaking out, he responded by filing a Section 1983 action contending that he was retaliated against for engaging in speech protected by the First Amendment. Legally, however, Ceballos has one critical problem: he did exactly what his job required.

Ironic as the situation appears, the case of Garcetti v. Ceballos turns on the question of whether the First Amendment ever protects the job-required speech of public employees. Before the 1968 case of Pickering v. Board of Education, government employees enjoyed few First Amendment protections. But in Pickering, the Court bestowed protection upon the speech of a public school teacher who was fired after he published a letter in the local newspaper criticizing the school’s funding policies. Noting that the government has a special interest in regulating the speech of its own employees, the Pickering Court developed a two-step test, which first asks whether the speech addresses a matter of public concern. If it does, the court then balances “the interests of the [employee], as a citizen, in commenting upon matters of public concern” against “the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” In Connick v. Myers, the Supreme Court further refined the test, holding that a government employee can only pass the first threshold “public concern” step when the employee “speaks . . . as a citizen upon matters of public concern,” and not when he speaks “as an employee upon matters only of personal interest.”

The problem for Richard Ceballos is that he does not fit neatly into either of the categories established by Connick. Even the Los Angeles County District Attorney’s office appears to concede that bringing police misconduct to light is a matter of public concern. However, since Ceballos did so pursuant to his job requirements, he was not speaking “as a citizen,” but rather “as an employee.” The Supreme Court has agreed to resolve the circuit split over whether the First Amendment applies when the employee speaks “as an employee” upon matters of public concern.

They have now ruled that it does not. Frankly, that there were any dissenting votes on that narrow question is puzzling. Again, anyone who has both a job and an above-room-temparature IQ knows that they don’t have freedom of speech vis-a-vis their workplace.

Update: yetanotherjohn offers a more plausible explanation for Ceballos’ firing in the comments.

Update: Even the opinion itself [PDF format] does not fully clarify. From Justice Kennedy’s opinion:

Despite Ceballos’ concerns, Sundstedt decided to pro-ceed with the prosecution, pending disposition of the defense motion to traverse. The trial court held a hearing on the motion. Ceballos was called by the defense and recounted his observations about the affidavit, but the trial court rejected the challenge to the warrant. Ceballos claims that in the aftermath of these events he was subjected to a series of retaliatory employment actions. The actions included reassignment from his calendar dep-uty position to a trial deputy position, transfer to anothercourthouse, and denial of a promotion. Ceballos initiated an employment grievance, but the grievance was deniedbased on a finding that he had not suffered any retaliation. Unsatisfied, Ceballos sued in the United States District Court for the Central District of California, asserting, as relevant here, a claim under Rev. Stat. §1979, 42 U. S. C.§1983. He alleged petitioners violated the First and Four-teenth Amendments by retaliating against him based onhis memo of March 2.

Petitioners responded that no retaliatory actions weretaken against Ceballos and that all the actions of which he complained were explained by legitimate reasons such asstaffing needs. They further contended that, in any event, Ceballos’ memo was not protected speech under the FirstAmendment.


Update:
TChris quotes Justice Stevens’ dissent:

[I]t is senseless to let constitutional protection for exactly the same words hinge on whether they fall within a job description. Moreover, it seems perverse to fashion a new rule that provides employees with an incentive to voice their concerns publicly before talking frankly to their superiors.

So, again, it seems that Ceballos was being punished merely for the act of writing the memo rather than for sharing the info with outsiders. I’m thoroughly confused.

Update: I got an email from Dylan Blaylock, Communications Director of the Government Accountability Project (whistleblower.org) and spoke with him on the phone. They’re clearly not happy with the ruling and emphasize the fact that Justice Alito was the deciding vote. Blaylock confirms that Ceballos’ offense was turning the memo over to the defense attorneys, not simply writing it.

Blaylock points me to an October 2005 NYT op-ed he co-authored with Coleen Rowley.

After finding evidence suggesting that a deputy sheriff might have lied in order to obtain a search warrant, Mr. Ceballos drafted a memo to supervisors detailing the wrongdoing and recommending that they drop the case. After supervisors proceeded with the prosecution, Mr. Ceballos informed the defense of his findings, as required by law. He was subsequently removed from the prosecution’s team, demoted and transferred to a different office.

Interestingly, although Ceballos was clearly demoted, being moved from a supervisor to a non-supervisory role, the administrative review said he had suffered “no adverse reaction” and had no grounds for appeal. His only recourse was a lawsuit seeking whisteblower protection which, as we have seen, hinges on the private/official speech distinction. Blaylock and Rowley argue this is bad public policy.

The Standards of Ethical Conduct for Employees of the Executive Branch, regulations by which all federal workers are required to abide, clearly state that employees “shall disclose waste, fraud, abuse and corruption to appropriate authorities.”

But no law effectively protects federal workers who report malfeasance as part of their job duties. And coverage of state workers is patchy. As a result, those workers we depend on for our safety have often faced a terrible conundrum: either remain quiet and allow fraud and wrongdoing to occur, or speak out and risk retaliation. When one of us (Ms. Rowley) spoke out about the F.B.I.’s pre-9/11 lapses, it was likely only the leaking of her memo to the press that saved her from professional retaliation.

It is indeed a Hobson’s choice. I remain dubious of the 1st Amendment argument here but there ought to be some administrative protection for government employees seeking to “do the right thing” within organizational channels.

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James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. I’m conflicted on this. On the one hand I agree that an employee should be fireable for what they say, even if it is in the pursuit of his employment. If I went in to sell a product and compared the competition’s product favorably to mine, it would be entirely reasonable for the employer to fire me even though I had said only the truth, only responded to the customer’s questions and done all this as part of my job.

    On the other hand, as an ethical person I need to tell the truth. I have been in the situation where I have the inferior product. I’ll acknowledge the problem, but make sure the customer knows the advantages also. I’ve won sales based on the customer’s perception of me even when my product wasn’t the clear winner. I even remember one sale where I clearly didn’t have the right fit, won anyway and watched the customer’s sales stagnate as consumers realized it wasn’t the best choice.

    I think the case to me would hinge on the question of what was said. If it was a debatable point, then it was right to write the memo, bring it up, discuss it with the boss and sheriff, etc. The sticking point was sending the memo to the opposition attorney. Whether the warrant was legal was obviously debatable enough that his boss could be convinced to continue by the sheriff. If it was aclear case, then the defense attorney could have convinced a judge to throw everything out in a closed door session. So on a debatable point, undercutting your bosses position by providing help to the opposition seems to me to be a reasonable ground for dismissal.

  2. James Joyner says:

    YAJ:

    I agree fully. If my post was unclear, I think Ceballos did exactly what he should have, he should not have been fired, and that an administrative review of his case should restore his job and back pay.

    I simply don’t think “free speech” is the reason he should get the job back but rather because the supervisor is a moron and acted improperly.

  3. Anderson says:

    I’ve barely skimmed the ops, but here’s my issue:

    It seems entirely plausible that, had the guy called up the newspaper instead of filing his memo, he would’ve been protected under Pickering et al.

    If that’s the case, then this decision is going to seem very wrongheaded indeed.

  4. James Joyner says:

    Anderson: Yep. It’s a bizarre case all around in that justice is not being done in Ceballos’ case. The ruling itself is almost a no-brainer, though, given the narrow framing.

  5. McGehee says:

    It seems entirely plausible that, had the guy called up the newspaper instead of filing his memo, he would�ve been protected under Pickering et al.

    It wouldn’t be the first time that the courts inadvertantly created a perverse incentive. That’s one of the consequences of the necessarily piecemeal nature of constitutional jurisprudence.

  6. James,

    I don’t think we are agreeing. I think he should get fired. Not for writing the memo. Not for investigating the claim. Not for being supeaned to testify. But for sending the memo. He should have at least waited until the memo was supeaned or given it to his boss with another memo saying that he thought this fell under the information that should be sent to the defense attorney.

    I am aware of no duty that requires an attorney, including the government attorney, to disclose their internal preperation material to the defense. They have to provide evidence, but work product about the evidence is not required to be shared.

    Imagine if an attorney was tasked with coming up with the other sides arguments. He has to look at things most favorably to the other side to anticipate the other sides lines of defense. He comes up with what he considers to be a killer argument. He talks it over with his boss. Boss thinks it is good enough to bring it up with the client (maybe we should settle). Client says he can see two sides to the argument and wants to go forward. Defense knows there was a killer argument, so is going to call the attorney to the stand. The attorney who came up with the killer argument has to 1) not lie on the stand, 2) shouldn’t become enamored with his own argument to the point of helping the opposition by sending him his killer argument memo.

    The “lie” appears to be debateable. If it was clear cut, then the boss and the sheriff are subject to various sanctions.

    But his work product, the memo, belonged to the DA office. He found evidence of wrong doing, which is not conclusive proof. He had the internal discussion, in short he got his “day in court” to argue the issue internally. He lost the debate. Now he may have felt very strongly, but that doesn’t make him right or the one to sabatoge the case.

    “Knowing that Ceballos had legitimate concerns about the affidavit, defense counsel in the case subpoenaed Ceballos to testify at the hearing. Ceballos agreed to testify andâ??pursuant to what he believed were his prosecutorial obligationsâ??provided the memo to defense counsel.”

    Again, you would have to show me where internal work product (not evidence) has to be sent to the defense attorney. Further, if you look at what Roberts said “Official communications have official consequences, creating a need for substantive consistency and clarity. Supervisors must ensure that their employeesâ?? official communications are accurate, demonstrate sound judgment, and promote the employerâ??s mission” I think that is the case here. He can’t lie, but he doesn’t need to send the internal memo.

  7. James Joyner says:

    YAJ:

    That actually makes a lot more sense as a grounds for firing. None of the sources I’d seen made it clear he turned the memo over to the defense team; merely that he’d written it.

    I’m not sure an investigation into lying at the trial is “work product” or that prosecutors don’t have a more robust duty to turn over adverse information than the defense given that they represent “The People.” Still, it’s a much closer call than simply writing up an internal memo.

  8. James,

    “Ceballos agreed to testify andâ??pursuant to what he believed were his prosecutorial obligationsâ??provided the memo to defense counsel.” came from the snippet you had below the fold.

    As far as work product, that gets a bit tricky. Evidence is clear. If the sheriff office took 2 pictures, used one to get the warrant and didn’t mention the second one, then when the DA found out about the second picture they would be required to turn it over.

    If they had one picture and there was a question of interpretation of the picture it gets more complicated. Lets say they took the picture and evidence was potentially visible. But when they went in they found the evidence, but not as the picture was interprited. If there were notes from the officer saying this, you have to turn it over (thats evidence). If it was anecdotal, maybe you don’t have to pass it on.

    But lets take a case that is harder to parse. Lets say the warrant was issued based on a “known and reliable informant” who is not named. The attorney finds out the informant had given information for warrants 5 times and one of those times turned out to be bogus. Is the guy “reliable”? This becomes a question of interpretation. The identity of the informant can be protected from disclosure by the DA for obvious reasons. The evidence collected in the search won’t change, but if the warrant was thrown out, the case is killed.

    So the attorney investigates and concludes that the informant absolutely used the police to do a nasty to a rival, guy hitting on his girl or whatever. The sheriff knew this, but still felt overall the informant was reliable. The attorney is incensed about this and feels that executing warrants on the basis of this informants word is unconcienable based on the track record. He thinks the sheriff lied in calling the informant reliable.

    Now I am not sure what requirement there would be to disclose the previous track record of the informant, but I suspect that it would not be required as part of concealing the informants identity.

    So what you are left with is a memo that lays out the case why the attorney thinks the informant is not reliable, that the sheriff knew about the unreliability, that swearing that the informant was reliable in the warrant was a lie and thus the warrant shouldn’t have issued. If the warrant shouldn’t have issued, then fruit of the tree is poisoned (thanks to the warren court, the truth about the crime or evidence is irrelevant in all of this).

    Now if they aren’t resuired to provide the details of the informants trackrecord as part of protecting the informants identity, everything else becomes a question of interpretation. Does the one bad time make the informant unreliable or do the 4 good times make him reliable. Reasonable men could differ.

    Now assuming there was nothing required to be turned over to the defense is a key fact to me. If it was required, the case gets harder. But we only have the guy who got demoted saying he thought it was required. Assuming he thought wrong (which is at least arguable given both Roberts and Kennedy’s statements extracted by the press account), then this is a clear case of the employee messing up and getting punished for it.

    Now if reasonable men could differ on if the informant was reliable, the attorney substituting his judgement for his bosses seems like a fireable offense. Would you want an employee working for you that would listen what you said and then ignore it to do what they saw fit in a questionable case. Or as Kennedy put it “They do not, Kennedy said, have â??a right to perform their jobs however they see fit.â??”

    This really comes down to a question of the facts, which I assume the court addressed. If he could make a better case that he did what he was required to do, I suspect it wouldn’t have gotten this far.

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  10. Alaina says:

    It is strange this case was decided today. I hadn’t heard of this case and happened to see a blurb on the bottom of the CNN ticker after spending several hours today trying to decide what I should do about a situation at work. I wanted to see what protections were in place for whistle blowers since I already work for an incredibly passive aggressive boss and fear retaliation but also fear doing the job as she wants it done. Mine situation basically involves me certifying that a person is working when they aren’t and even giving them comp time in certain situations. How does this decision protect me if I am to take this problem to the I.G.? I am no lawyer but from what I read there is no protection unless you take it to the press…

    HELP definitely need more info before I make my final judgement!