Concepts and Procedures in Whistleblower Law

By Stephen M. Kohn | Go to book overview

Chapter 4
Whistleblower Protection under
the First Amendment and the
Civil Rights Act of 1871

The First Amendment to the U.S. Constitution protects the speech of federal, state, and local government-employee whistleblowers.1 The amendment allows federal employees to seek prospective injunctive relief against policies or conduct that violates the First Amendment rights of federal employees.2 The First Amendment, as applied through the Fourteenth Amendment3 and the Civil Rights Act of 1871,4 allows employees of state and local governments5 to obtain injunctive6 and monetary relief if they are discriminated against on the basis of First-Amendment-protected whistleblowing.7 First Amendment protections also apply to at-will government contractors8 and non-civil service and non tenured government employees.9

In 1968 the Supreme Court held that the First Amendment protects government employees who engage in speech on matters of public concern.10 The First Amendment protects employees who blow the whistle either publicly or privately to their supervisors.11 Whether any specific speech or disclosure of wrongdoing is protected under the First Amendment depends upon a case-by-case analysis under the rule pronounced in Pickering v. Board of Education: "absent proof of false statements knowingly or recklessly made "the" exercise of his right to speak on issues of public importance may not furnish the basis for his dismissal from public employment."12

In order for a public employee&s speech to be protected, it must

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