Supreme Court Limits Whistleblower Retaliation Lawsuits

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. (U.S. Constitution: First Amendment)

May 30, 2006

The justices ruled 5-4 Tuesday that government employees who go public with allegations of official misconduct do not have carte blanche free speech rights to disclose the information. The newest justice, Samuel Alito, cast the tie-breaking vote.


SUPREME COURT OF THE UNITED STATES Syllabus GARCETTI ET AL. v. CEBALLOS CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 04–473. Argued October 12, 2005—Reargued March 21, 2006—
Decided May 30, 2006
Respondent Ceballos, a supervising deputy district attorney, was asked by defense counsel to review a case in which, counsel claimed, the af-fidavit police used to obtain a critical search warrant was inaccurate. Concluding after the review that the affidavit made serious misrep-resentations, Ceballos relayed his findings to his supervisors, petition-ers here, and followed up with a disposition memorandum recommend-ing dismissal. Petitioners nevertheless proceeded with the prosecution. At a hearing on a defense motion to challenge the war-rant, Ceballos recounted his observations about the affidavit, but the trial court rejected the challenge. Claiming that petitioners then re-taliated against him for his memo in violation of the First and Four-teenth Amendments, Ceballos filed a 42 U. S. C. §1983 suit. The Dis-trict Court granted petitioners summary judgment, ruling, inter alia, that the memo was not protected speech because Ceballos wrote itpursuant to his employment duties. Reversing, the Ninth Circuit held that the memo’s allegations were protected under the First Amendment analysis in Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U. S. 563, and Connick v. Myers, 461 U. S. 138. Held: When public employees make statements pursuant to their offi-cial duties, they are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communica-tions from employer discipline. Pp. 5–14.


GIL GARCETTI, ET AL., PETITIONERS v. RICHARD
CEBALLOS
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[May 30, 2006]
JUSTICE STEVENS, dissenting. The proper answer to the question “whether the First Amendment protects a government employee from disci-pline based on speech made pursuant to the employee’s official duties,” ante, at 1, is “Sometimes,” not “Never.” Of course a supervisor may take corrective action when such speech is “inflammatory or misguided,” ante, at 11. But what if it is just unwelcome speech because it reveals facts that the supervisor would rather not have anyone else discover?*

"...for it is senseless to let constitutional protection for ex-actly the same words hinge on whether they fall within ajob description. Moreover, it seems perverse to fashion a new rule that provides employees with an incentive tovoice their concerns publicly before talking frankly to their superiors."

from: http://www.supremecourtus.gov/opinions/05pdf/04-473.pdf#search='Garcetti%20v.%20Ceballos,%2004473.'

Somewhere along the way, Supreme Court Activism has taken the 1st Amendment and opined its protections into what we see today. For an in-depth review of how the 1st Amendment has evolved:

http://caselaw.lp.findlaw.com/data/constitution/amendment01/

Some additional food for thought:

http://www.statesman.com/news/content/news/stories/nation/12/11whistlebox.html