Analysis: a limit on internal whistleblowing?
Amid a public display of anguish by Justice Anthony M. Kennedy about the “sweeping…intrusive consequences” of broad First Amendment protection for public employees who blow the whistle internally, the Supreme Court on Wednesday explored how to put limits on that kind of speech. It appeared, after a lively hour of argument, that in-the-office memoes or comments seeking to expose official misconduct may get little, if any, constitutional protection against retaliation.
Counting the votes that seemed likely to follow the public comments and questions, it appeared that Chief Justice John G. Roberts, Justice Kennedy, and Justice Antonin Scalia were most likely to accept a government argument that internal complaints — even about matters of “public concern” — would be put outside the First Amendment’s umbrella. Those three, perhaps, could pick up fairly easily a fourth vote from Justice Clarence Thomas, although he said nothing. Kennedy was the most aggressive, telling a lawyer for a California prosecutor/whistleblower that her position would set up the courts “to supervise the constant dialogue in every agency in every government in the United States.”
But, while it was evident that a majority probably would emerge against internal whistleblowing, it was by no means clear where votes 5, or 6, or 7 might be found. Justice Stephen G. Breyer, who was most eagerly looking for some limiting principle, might well provide a deciding vote, cast on narrower grounds. Suggesting he was caught between the claims made from each side, Breyer asked: “Is there a middle approach? If so, what?”
Breyer noted that “thousands of things” are discussed every day in government offices that are matters of “public interest,” and said it “is hard for me to believe this is an area where no First Amendment applies.” But, he said, the whistleblower’s lawyer “only gives me that, in every situation, there would be First Amendment litigation” where a public employee made an internal challenge on a public question.
The other four Justices — Ruth Bader Ginsburg, Sandra Day O’Connor, David H. Souter and John Paul Stevens — were either hostile or skeptical to the notion that, if an employee spoke out internally on an issue that was within a normal work assignment, the First Amendment would not apply at all. Only when an employee blew the whistle “as a citizen” would there be any shield against retaliation, according to that approach.
Justice Stevens, for example, said he thought it was an odd argument to suggest that there would be First Amendment protection only if an employee went outside the agency to register a complaint about a public issue, instead of making that complaint through internal channels. Justice Kennedy, however, countered that the First Amendment was at its most important when used to protect “speaking out in public,” as opposed to doing so in the privacy of the workplace.
Chief Justice Roberts brought the issue closer to the Court by suggesting — with no hint of humor in his voice — that a ruling for internal whistleblowing could mean that a Justice might face a First Amendment challenge if he or she fired a law clerk for preparing a memo suggesting that another Justice’s “jurisprudence was wacky.” When the whistleblower’s lawyer said the clerk would have no First Amendment claim for the exercise of “bad judgment,” Roberts countered that, if the public interest were the deciding factor in the calculus, nothing could be “more important than the conduct of justice.”
Bonnie I. Robin-Vergeer of Washington was representing a deputy prosecutor in Los Angeles who claimed he was disciplined in retaliation for an internal memo to his supervisor complaining about a deputy sheriff’s misconduct in obtaining a search warrant. Her client, Richard Ceballos, sued his supervisors, claiming a violation of his First Amendment rights.
His case seeks clarification from the Court on the standard to be used when public employee speech is engaged in internally, but deals with a matter of “public concern.” That is an issue not resolved by the Court’s two most important prior rulings on public employee speech rights — Pickering v. Board of Education in 1968 and Connick v. Myers in 1983.
The bright-line argument for no constitutional protection when a public employee speaks about a matter that is within the line of duty was made by Cindy S. Lee of Glendale, CA, speaking for former District Attorney Gil Garcetti. Lee’s position was supported fully by the federal government as amicus, represented by Dan Himmelfarb, an assistant to the Solicitor General.
The case, Garcetti v. Ceballos (docket 04-473), is expected to be decided by next Spring.
I think Lyle is correct about the votes. My guess is that California (Garcetti) will win with 6. Four justices (Scalia, Kennedy, Thomas and Roberts) writing that a public employee must speak as a citizen to even get to Pickering, while two (Breyer, O’Connor) will do some sort of balancing test about when internal dialogue can receive protection. It did seem, however, that all of the justices were concerned about the sweeping nature of the employee’s argument, so we’ll have to wait and see.
Comment by blindgambit — October 12, 2005 @ 12:02 pm
If this is true, it’s going to be absolutely devastating for college professors, who routinely address matters of public concern during working hours, and who lack a bright line in their publications between their speech as employees and their speech as citizens.
Under the likely plurality opinion, they’ll have even less protection than the ordinary public employee, even though they’ve traditionally received a bit more protection in how the Connick-Pickering balancing test is applied.
Say goodbye to academic freedom.
Comment by Hans Bader — October 12, 2005 @ 1:37 pm
Does anyone know why Ceballos didn’t have a remedy under California whistleblower protection law? It’s pretty basic that you look to other sources first before turning to the Constitution.
Comment by Kent Scheidegger — October 12, 2005 @ 4:33 pm
Mr. Scheidegger’s comment raises a larger issue as well: Isn’t “internal whistleblowing” about putative violations of law exactly the sort of thing that one would expect to find protected by the very majorities that enacted those laws in the first place? Such whistleblowing is a very different thing from criticism of the popular or legal status quo, or debate about whether it should be altered, which is what I assume Mr. Bader has in mind. That is sort of speech I take to lie at the heart of the the First Amendment. One who acts as the servant of the king or the laws expects to receive adequate protection from them; however, one who criticizes either could well seek protection from a higher source.
In the case just argued, I should think that Ceballos would best distinguish between alleged violations of ordinary laws as against claimed violations of constitutional rights. It is the latter that might not find adequate protection courtesy of the popular will or the powers that be. Here, Ceballos was seeking (I suppose) to enforce the constitutional requirement of a search warrant. Thus, he could well expect that same Constitution to afford him refuge when the powers that be seek to punish him for his efforts. In that way, it seems to me, Ceballos’s speech differs considerably from multitudinous day-to-day matters about which Justice Kennedy raised concern.
On the other hand, such a counter-majoritarian, process-oriented view of the Bill of Rights may no longer be fashionable, if it ever were.
Comment by Michael Wasserman — October 12, 2005 @ 5:25 pm
Lyle:
I am a little confused. Is the issue before the court whether any internal whistleblowing is protected under the First Amendment, or whether internal whistleblowing which is part of the plaintiff’s job duties protected by the First Amendment?
Comment by psychsound — October 13, 2005 @ 9:40 am
There are public policy issues that undergird the constitutional consideration. What about a water supply employee who is fired for reporting contamination dangerous to health, or a firefighter reporting problems that might interfere with public safety (an actual case)? The dividing line appears quite clear. A public employee speaks as an employee when he or she speaks about matters that concern him or her as an employee, such as hours or conditions of work. Speech on other matters is as a citizen, and the determination can then be made whether or not the statements have significance in the public interest.
Comment by DavidT — October 13, 2005 @ 5:41 pm