A new Supreme Court ruling on whistleblowers underscores the shift that has occurred on the Supreme Court with the appointment of President George W. Bush’s two new Supreme Court justices:
The Supreme Court declared today, in a ruling affecting millions of government employees, that the Constitution does not always protect their free-speech rights for what they say on the job.
In a 5-to-4 decision, the court held that public employees’ free-speech rights are protected when they speak out as citizens on matters of public concern, but not when they speak out in the course of their official duties.
Today’s ruling, involving a deputy Los Angeles district attorney who contended that he had been denied a promotion for challenging the legitimacy of a search warrant, came in a case that has been closely watched not just by public workers but by those who have worried that it could discourage internal whistle-blowers from speaking up about government misconduct and inefficiency.
“We hold that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline,” Justice Anthony M. Kennedy wrote for the court.
The court’s newest justice, Samuel A. Alito Jr., was in the majority as were Chief Justice John G. Roberts Jr., Justices Antonin Scalia and Clarence Thomas.
The ruling noted the enormous variety of factual situations involving relationships between public employers and their employees, and it suggested that the particular facts of a case must be closely examined.
There will be (and are already) many legal analyses on this decision, but even though we may not see this exact line-up on future cases, it does represent a shift and Alito seemed to be the deciding vote. Depending on where you stand, it’s good news or bad news but one thing it doesn’t seem to be is business as usual. The question is whether it will be.
Joe Gandelman is a former fulltime journalist who freelanced in India, Spain, Bangladesh and Cypress writing for publications such as the Christian Science Monitor and Newsweek. He also did radio reports from Madrid for NPR’s All Things Considered. He has worked on two U.S. newspapers and quit the news biz in 1990 to go into entertainment. He also has written for The Week and several online publications, did a column for Cagle Cartoons Syndicate and has appeared on CNN.