Publicly speaking

June 05, 2006

Do public employees lose their First Amendment rights as a condition of their work? The U.S. Supreme Court's closely divided answer to that question last week sends a troubling signal to government workers, including whistleblowers, who want to challenge public policies.

When a deputy district attorney in Los Angeles questioned in writing the truthfulness of statements made in an affidavit by a sheriff's deputy seeking a search warrant and recommended that the case be dismissed, his supervisors were not so concerned and proceeded to prosecute. Later, the deputy filed a lawsuit claiming that he had been reassigned and denied a promotion in retaliation for his actions in violation of his free speech rights.

But according to the court majority's rather narrow interpretation - written by Justice Anthony M. Kennedy and joined by Chief Justice John G. Roberts Jr., Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. - the deputy was merely doing his job in speaking out and, therefore, was not entitled to any special First Amendment protection. As a public employee telling his superiors how to proceed with a pending case, the deputy's statements were part of his official duties and should not be considered immune from employer discipline, they said.

The dissenters - John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer - showed less deference to the government's managerial needs and more concern for the public's right to know. Justice Souter's standard of greater tolerance for employee comments concerning official dishonesty, purposely unconstitutional action, serious wrongdoing or threats to health and safety may be too broad for a majority of his colleagues, but in fact it certainly seemed to strike a more appropriate balance. It also underscores why more protection for free speech rights of public employees, and not less, is so important.

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