Comments on: Analysis: a limit on internal whistleblowing?

By: DavidT

DavidT — Thu, 13 Oct 2005 21:41:35 +0000

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.

By: psychsound

psychsound — Thu, 13 Oct 2005 13:40:21 +0000

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?

By: Michael Wasserman

Michael Wasserman — Wed, 12 Oct 2005 21:25:01 +0000

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.

By: Kent Scheidegger

Kent Scheidegger — Wed, 12 Oct 2005 20:33:22 +0000

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.

By: Hans Bader

Hans Bader — Wed, 12 Oct 2005 17:37:00 +0000

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.

By: blindgambit

blindgambit — Wed, 12 Oct 2005 16:02:16 +0000

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.