Govt Whistleblowers now less protected, says 5-4 Supreme Court

[Andy9o8 2]

Some of you have said that government whistleblowers are wrong (or even treasonous) for going anonymously to the press, and that, instead, they should work within the system and simply report the wrongdoing to an internal authority. Well, here’s what happened to one conscientious prosecutor who tried to do just that: he got demoted, and his career track in the DA’s office is probably in the toilet.

So much for that idea. It’s examples like this that will increase the incidence of government whistleblowers going anonymously to the press. If they're not going to be protected, who can blame them?

http://www.washingtonpost.com/wp-dyn/content/article/2006/05/30/AR2006053000463_pf.html

Quote

The Supreme Court yesterday bolstered the government's power to discipline public employees who make charges of official misconduct, ruling that the First Amendment does not protect those who blow the whistle in the course of their official duties.

By a vote of 5 to 4, the court ruled that the Los Angeles County district attorney's office did not violate prosecutor Richard Ceballos's freedom of speech by allegedly demoting him after he wrote to supervisors charging that a sheriff's deputy had lied to get a search warrant.

Dissenters on the court, civil libertarians and public-employee unions said the ruling, which extends to all of the nation's public employees, could deter government workers from going to their bosses with evidence of corruption or ineptitude.

[lawrocket 3]

While fairly torn in this case, I do believe that I fall in line with the majority. The reason is this:

The only thing disposed of in this case is whether whistleblowing constitutes "speech" that is protected by the 1st Amendment. Typically, "free speech" is protected if the speech is that of a personal interest. My employees, for example, have their routine duties and employment obligations. It doesn't matter how they feel about it, they've got a job to do.

When a public employee is carrying out these duties, the speech is not personal. Rather, it is speech in a representative capacity. The 1st DOES allow a public employee to speak as a private citizen addressing some concern that is public in nature. If the answer is "yes" then the question becomes whether the entity had a relevant reason for treating the employee any differently than a public citizen.

Obviously, a person who accepts employment gives up certain rights, even when it's government employment (look at the right military folks give up).

In this case, the memo that the Deputy DA wrote was done in his capacity as an employee of the County, and a representative of the People of the State of California.

Personally, I fucking applaud the hell outta this guy for his principle - a trait that is stereotypically absent from attorneys, and in truth is less common than is desireable. And frankly, District Attorneys are the worst - they don't have to worry about malpractice or malicious prosecution - their acts as DA's are almost 100 percent privileged. To hear of a DA doing this blows me away. No, I'm not particularly fond of DA's.

But the point is that the attorney didn't act as a private citizen - he acted as a deputy DA, which brings it out of that 1st Amendment protection.

The whistleblower laws are still valid. Other protections are still available to people who blow the whistle. The court has said that it's just not a "Constitutional" protection. Think of it this way - there is nothing in the Constitution that protects you from being shot. Other laws are set up to punish the shooter. There are laws set up to protect whitleblowers, too.

The more I think about it, the more I think that it makes sense not just from a theoretica point of view, but also a practical point of view. To hold otherwise would basically mean that the Court would be implicated to supervise employer-employee communications. With that, only lawyers would benefit.

My wife is hotter than your wife.

[Dolph 0]

So this guy can sue his boss for wrongfully demoting him? And, if he can back up that the cop lied and so forth, he could win?

Considering his career has probably been ruined by this, it'd seem he'd be up for a sizable compensation if such a suit is possible and if he won.