Free speech issue bypassed

Government employees who get into trouble for disobeying a superior’s plea to file a report thatthe employee thinks is false and believes will contribute to covering upmisconduct will get no legal guidance on their plight from the Supreme Court, even though lower courts are in dispute over how to decidethat issue. Without comment, the Court on Monday denied review in two new cases, raising that First Amendment free-speechquestion from opposite sides.

The Court had been asked, in separate cases from New York and Washington, D.C., to further clarify its decision five years ago in Garcetti v. Ceballos, denying First Amendment protection to public employees for remarks they made in the course of their official duties. Federal appeals courts have since split on whether that denial of protection extends even toa situation where a worker has been fired or otherwise disciplined for refusing to file an official report about their work, when superiors had demanded that the report be submitted in a form that would be false and could conceal wrongdoing within the agency. The Justices’ refusal to step into that controversy leaves it to be worked out further among the lower courts, meaning that public employees will have different legal rights depending upon where they live and work.

The denial of review of that issue came amid a series of new orders, with the Court granting no new cases for decision. In one of the other orders, the Court refused — for the second time — to allow a conservative advocacy organization named Freedom Watch to join in the oral arguments on the new health care law. Freedom Watch is not directly involved in the case, but it regards the new law as a forbidden intrusion into the private lives of Americans. It has filed a friend-of-Courtbrief in the case seeking to compel Justice Elena Kagan’s disqualification from taking part in the coming decision, on the argument that she was involved previously as a government lawyerin the Obama Administration’s pursuit of the new law in Congress. The Court refused on January 23to grant Freedom Watch time in the oral argument, and, in the new order, it simply refused to reconsider. Justice Kagan took herself out of the Court’s action on both occasions without saying why, butapparently because Freedom Watch’s challenge was a claim against her but was not one involving a formal motion for her to recuse. If there were a formal recusal motion, she would act on it directly. The Court’s orders on the argument issue contained no explanation. There is no indication that Kagan will take herself out of participation in the health care argument or ruling.

In one of the public employee free-speech cases, Byrne, et al., v. Jackler (docket 11-517), the police chief and two other officers in Middletown, N.Y., sought to challenge a Second Circuit Court decision that they hadacted illegally for their roles in the firing of aprobationary officer after he had refused an order tofile a report about another officer’s striking of a suspect during an arrest. The fired officer, Jason M. Jackler, disobeyed because he knew the facts were different from those he was told to put in the report. The Second Circuit ruled that Jackler was not acting in the role of a police officer, but rather as a private citizen resisting an official coverup, at the time he disobeyed, so the Garcetti decision did not apply.

Exactly the opposite outcome had come in the other case, Bowie v. Maddox (11-670). David M. Bowie, a former FBI agent who had gone to work in the local Washington, D.C., government’s inspector general’s office, investigating misconduct inside the D.C. government. Bowie was fired after he had refused to submit an affidavit that would have sided with his superiors falselyin a civil rights case involving a black employeeagainst the IG office. Bowie believed that the employee had been fired on demand from the FBI, which was reportedly upsetby an earlier lawsuitclaiming race bias in the Bureau’s policy on promoting black agents. Bowie’s superiors wanted him to tell their version in the affidavit. The D.C. Circuit Court, relying upon the Supreme Court’s Garcetti decision, ruled against Bowie, concluding that he was fired for refusing to carry out an order in the line of duty and thus had no First Amendment protection for his refusal.

Besides turning down both of those petitions, the Supreme Court on Monday refused to hear a constitutional challenge to a Maine law that requires those seeking to raise and spend money in state election campaigns to organize as apolitical action committee for that activity, and make significant disclosures about their financial operations. That was challenged in a petition, National Organization for Marriage v. McKee (11-599), after the state law was upheld by the First Circuit Court. The NOM is an organization set up to promote the traditional view of marriage as being reserved solely for opposite-sex couples. It argued in challenging the PAC requirement that states do not have the constitutional authority to impose such obligations unless an organization has election campaign activity as its “major purpose.”