From High Court, Warning to Whistle-Blowers ; the Justices Find That Public Workers' Criticisms Aren't 'Protected' Speech

Article excerpt

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.

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. …