High court limits free-speech rights

Public workers can be punished for speaking out

May 31, 2006|By DAVID G. SAVAGE | DAVID G. SAVAGE,LOS ANGELES TIMES

WASHINGTON -- The Supreme Court restricted the free-speech rights of the nation's 21 million public employees yesterday, ruling that the First Amendment does not protect them from being punished for complaining to their managers about possible wrongdoing.

Although government employees have the same rights as other citizens to speak out on controversies of the day, they do not have the right to speak freely inside their offices on matters related to "their official duties," the court said in a 5-4 decision.

"When a citizen enters government service, the citizen by necessity must accept certain limitations on his or her freedom," said Justice Anthony M. Kennedy, rejecting a suit brought by a Los Angeles County prosecutor.

Lawyers for government whistle-blowers denounced the ruling. Hospital workers who know of dangers may be discouraged from revealing them, while police and public employees may be dissuaded from exposing corruption, they said.

"In an era of excessive government secrecy, the court has made it easier to engage in a government cover-up by discouraging internal whistle-blowing," said Steven Shapiro, legal director for the American Civil Liberties Union.

However, lawyers for city and state agencies said the decision would prevent routine internal workplace disputes from becoming federal court cases.

The decision threw out most of a lawsuit filed by Deputy District Attorney Richard Ceballos, who said he was disciplined after he wrote internal memos alleging that a police officer might have lied to obtain a search warrant.

The prosecutor urged his supervisors to dismiss a pending criminal case because of the police misconduct. His advice was rejected, and he was transferred to a lesser job farther from his home and denied a promotion.

Ceballos then sued county officials, alleging he had been punished for speaking out within the office. The 9th U.S. Circuit Court of Appeals agreed he was entitled to a trial on his lawsuit because he had spoken on a "matter of public concern." But the Supreme Court reversed that ruling yesterday.

"The First Amendment does not prohibit managerial discipline based on an employee's expressions made pursuant to official responsibilities," Kennedy said in Garcetti vs. Ceballos.

The court's newest justice, Samuel A. Alito Jr., cast a crucial vote to form the pro-government majority. The justices first heard the case in October, but they were apparently split 4-4 when Justice Sandra Day O'Connor finally stepped down in February. It was reargued in March. Also joining Kennedy were Chief Justice John G. Roberts Jr. and Justices Antonin Scalia and Clarence Thomas.

Because yesterday's decision interprets the First Amendment, it applies to governments at all levels, including federal and state agencies, public hospitals and public schools and colleges.

The dissenters said they would have left the courthouse door open to such First Amendment suits. "I would hold that private and public interest in addressing official wrongdoing and threats to health and safety can outweigh the government's stake" in running an efficient office, said Justice David H. Souter.

The dissenters cited the case of an engineer overseeing the building of a dam who was fired after questioning the work of private contractors. In another case, a city worker was dismissed after reporting thefts from the lottery board.

The federal government and most states have laws designed to protect whistle-blowers.

But advocates for whistle-blowers say these laws prove ineffective in many cases.

"Public employee truth-tellers are essential to the safety and welfare of our country. They expose corruption, fraud and national security shortcomings," said Joanne Royce, counsel for the Government Accountability Project in Washington.

Still, yesterday's majority opinion left open the possibility that an employee, such as Ceballos, might be shielded by the First Amendment if he acted as a "citizen," rather than in an official capacity, and took his complaints to a newspaper or to a state legislator.

Justice John Paul Stevens in dissent said it "seems perverse" to protect whistle-blowers who go public, while punishing those who take their concerns to their managers.

"We think this is a bad decision, but it may not be a catastrophe," said Peter Eliasberg, an ACLU lawyer in Los Angeles. "It basically says, if you go to the L.A. Times, you might get some protection. But if you report it in the office and up the chain of command, you don't have any protection under the First Amendment."

David G. Savage writes for the Los Angeles Times.

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