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Supreme Court limits First Amendment protection for government whistleblowers

[JURIST] The US Supreme Court [official website; JURIST news archive] on Monday held that First Amendment protections do not extend to government employees for comments made while performing their official duties, even when the employee is acting to expose alleged government wrongdoing. In a 5-4 decision in Garcetti v. Ceballos [Duke Law case backgrounder], the Court overturned a Ninth Circuit ruling [PDF text] which had extended free speech protections to a memorandum written by an employee in the Los Angeles District Attorney's office in which he argued that a sheriff lied in a search warrant affidavit, saying the memorandum should be protected because it was a matter of public concern. The employee, Ceballos, claimed he was retaliated against after he testified for the defense and submitted the memorandum he had written to the deputy District Attorney outlining the sheriff's misrepresentations. As a defense to the retaliation lawsuit, Ceballos' employers argued that the memorandum should not be entitled First Amendment protections because it was written in Ceballos' job-related capacity and not as his capacity as a citizen.

The Court's majority wrote that:

Exposing governmental inefficiency and misconduct is a matter of considerable significance. As the Court noted in Connick, public employers should, "as a matter of good judgment," be "receptive to constructive criticism offered by their employees." 461 U. S., at 149. The dictates of sound judgment are reinforced by the powerful network of legislative enactments—such as whistle-blower protection laws and labor codes—available to those who seek to expose wrongdoing. See, e.g., 5 U. S. C. §2302(b)(8); Cal. Govt. Code Ann. §8547.8 (West 2005); Cal. Lab. Code Ann.§1102.5 (West Supp. 2006). Cases involving government attorneys implicate additional safeguards in the form of, for example, rules of conduct and constitutional obligations apart from the First Amendment. See, e.g., Cal. Rule Prof. Conduct 5–110 (2005) ("A member in government service shall not institute or cause to be instituted criminal charges when the member knows or should know that the charges are not supported by probable cause"); Brady v. Maryland, 373 U. S. 83 (1963). These imperatives, as well as obligations arising from any other applicable constitutional provisions and mandates of the criminal and civil laws, protect employees and provide checks on supervisors who would order unlawful or otherwise inappropriate actions.

We reject, however, the notion that the First Amendment shields from discipline the expressions employees make pursuant to their professional duties. Our precedents do not support the existence of a constitutional cause of action behind every statement a public employee makes in the course of doing his or her job.
The Court first heard arguments [JURIST report] in the case last October, but in March reheard the case [JURIST report] to allow Justice Alito to participate in the decision. Read the Court's majority opinion [text] per Justice Kennedy, along with a dissent [text] from Justice Stevens, a dissent [text] from Justice Souter, joined by Justices Stevens and Ginsburg, and a third dissent [text] from Justice Breyer. AP has more.

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