I can’t say I quite understand the Supreme Court’s 5-4 decision today to limit whistleblower protections. Basically, you have a Los Angeles deputy prosecutor, Richard Ceballos, who complained to his bosses that the county sheriff’s deputy had lied in a search warrant affidavit (a trial court later threw out the challenge). After complaining, Ceballos claimed he was reassigned and then denied a promotion—acts that certainly seem like retaliation for whistleblowing.
Now the Supreme Court has long afforded whistleblowers some amount of protection from retaliation, but, in the decision today, refused to extend that protection to Ceballos, on the grounds that he was speaking out in his capacity as a public employee, rather than as a private citizen. This appears to mean that if he had simply called up a newspaper and told them about the problems with the search warrant, he’d be protected from retaliation. But because he wrote up an official memo to his bosses, he wasn’t. Huh? Here’s what John Paul Stevens had to say in his dissent:
[I]t is senseless to let constitutional protection for exactly the same words hinge on whether they fall within a job description. 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.
One would think so. Jack Balkin says this is a “very significant” development—employees acting in their official capacity may be disciplined for speaking out “without any First Amendment scrutiny”:
So, it appears that if one’s duties are to expose wrongdoing in the workplace, such exposure is entitled to no constitutional protection, but that if an employee whose duties do not involve such whistleblowing makes the exact same complaint, then Pickering/Connick analysis [i.e., protecting whistleblowers] still applies. A somewhat odd result, at least on first glance.
Samuel Alito, perhaps needless to say, voted with the majority and broke the tie. Seems to be an early sign of those pro-government tendencies many of his critics were worried about.