High court: On-the-job whistleblowing not free speech

The Supreme Court ruled Tuesday that the First Amendment does not shield public employees from disciplinary action for job-related speech.

By a vote of 5-4, the court restricted civil servants' ability to file lawsuits against agency retaliation over the disclosure of government misconduct.

Justice Anthony Kennedy wrote the majority opinion in the case, Garcetti v. Ceballos, which concerned a work-related memorandum written by Los Angeles County prosecutor Richard Ceballos about possible police misconduct. Ceballos said that as a result of his memo, he was demoted and reassigned to an office farther away from his home.

The high court said the office could take action based on Ceballos' memo.

"When public employees make statements pursuant to their official duties," Kennedy said in his decision, "the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline."

Justices John Roberts, Antonin Scalia, Clarence Thomas and Samuel Alito joined Kennedy in overturning a lower court decision on this case. The Supreme Court found that the U.S. Court of Appeals for the 9th Circuit's earlier ruling in favor of Ceballos would have committed the judicial system to an overly intrusive role in overseeing communication among government employees.

It will be difficult for government workers to discern when speech is part of the job, said Joanne Royce, general counsel for the Government Accountability Project, a nonprofit whistleblower advocacy group.

Tuesday's ruling will "inevitably have a chilling effect on the willingness of public employees to risk their livelihood to try to improve the place where they work," Royce said. "If they blow the whistle or raise issues of concern -- fraud, waste, abuse within their agencies -- they can be fired for it. They have no protection under the law."

A dissenting opinion, written by Justice John Paul Stevens, argued speech's relation to a job should be irrelevant to its First Amendment protections.

"It is senseless to let constitutional protection for exactly the same words hinge on whether they fall within a job description," Stevens said. "Moreover, it seems perverse to fashion a new rule that provides employees with an incentive to voice their concerns publicly before talking frankly to their superiors."

Lawyers for the Justice Department, Office of Personnel Management and other federal agencies submitted a brief in support of the Los Angeles County government, arguing that employers' personnel decisions are based on an employee's performance of duties, and the First Amendment does not have a say in that determination.

Royce said her group, which believes that whistleblowers protect the government against fraud and corruption, will push Congress to strengthen the whistleblower protections already on the books for federal employees.