Analysis: a limit on internal whistleblowing?
on Oct 12, 2005 at 11:38 am
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.
