High court trims whistleblower rights
Compiled from staff, wire reportsThe Supreme Court rules public employees don't have free speech rights for what they say as part of their jobs.
Published May 31, 2006
WASHINGTON - The Supreme Court scaled back protections for government workers who blow the whistle on official misconduct Tuesday, a 5-4 decision in which new Justice Samuel Alito cast the deciding vote.
In a victory for the Bush administration, justices said the 20-million public employees do not have free-speech protections for what they say as part of their jobs.
The ruling affects only constitutional free-speech claims related to work, the court said, not the rights of public employees off the job. Nor does it affect state and federal labor laws or whistleblower protection statutes, the court said.
Critics predicted the impact would be sweeping, from silencing police officers who fear retribution for reporting department corruption, to subduing federal employees who want to reveal problems with government hurricane preparedness or terrorist-related security.
Supporters said that it will protect governments from lawsuits filed by disgruntled workers pretending to be legitimate whistleblowers.
For the roughly 500,000 state and local public employees in Florida, the impact will likely be muted because state law includes strong free-speech protections. But any federal employee in the state - be it an FBI agent, a Veteran's Administration nurse or a soldier - will be affected by Tuesday's ruling, said Tampa lawyer John Lauro, a former federal prosecutor who specializes in whistleblower cases.
Also possibly affected are any state or local public employees whose salary derives from federal pass-through funds, such as a university researcher receiving a federal grant.
"This is disastrous for exposing federal wrongdoing,'' Lauro said. "This says those people should be discouraged from voicing concerns. It effectively puts a muzzle on them.''
Gene Schaerr, a lawyer for the International Municipal Lawyers Association, an organization of local government attorneys that supported the L.A. County District Attorney's Office, said the ruling "allows local and state governments the appropriate degree of oversight of their employees, without really impinging upon their First Amendment right to speak out as private citizens."
The ruling was perhaps the clearest sign yet of the Supreme Court's shift with the departure of Justice Sandra Day O'Connor and the arrival of Alito.
A year ago, O'Connor wrote a 5-4 decision that encouraged whistleblowers to report sex discrimination in schools. The current case was argued in October but not resolved before her retirement in late January.
A new argument session was held in March with Alito on the bench. He joined the court's other conservatives in Tuesday's decision, which split along traditional conservative-liberal lines.
Exposing government misconduct is important, Justice Anthony M. Kennedy wrote for the majority. Kennedy wrote that many "powerful" rules still "provide checks" on supervisors.
"We reject, however, the notion that the First Amendment shields from discipline the expressions employees make pursuant to their professional duties," Kennedy wrote.
The ruling overturned an appeals court decision that said Los Angeles County prosecutor Richard Ceballos was constitutionally protected when he wrote a memo questioning whether a county sheriff's deputy had lied in a search warrant affidavit. Ceballos had filed a lawsuit claiming he was demoted and denied a promotion for trying to expose the lie.
Kennedy said if the superiors thought the memo was inflammatory, they had the authority to punish him.
"Official communications have official consequences, creating a need for substantive consistency and clarity. Supervisors must ensure that their employees' official communications are accurate, demonstrate sound judgment, and promote the employer's mission," Kennedy wrote.
In his dissent, Justice David Souter wrote: "Private and public interests in addressing official wrongdoing and threats to health and safety can outweigh the government's stake in the efficient implementation of policy."
Souter was joined by Justices John Paul Stevens and Ruth Bader Ginsburg. Justice Stephen Breyer also supported Ceballos, but on different grounds.
The ruling upheld the position of the Bush administration, which had joined the district attorney's office in opposing absolute free-speech rights for whistleblowers. President Bush's two nominees, Alito and Chief Justice John Roberts, signed onto Kennedy's opinion but did not write separately.
Employment attorney Dan Westman said the ruling frees government managers to make necessary personnel actions, like negative performance reviews or demotions, without fear of frivolous lawsuits.
"I don't think he's unleashed a wave of terminations," Westman said.
Schaerr, a former government attorney, said the ruling keeps courts from meddling in the business of local governments. "It's not the role of the First Amendment to be an all-purpose whistleblower law," he said.
The court's decision immediately prompted calls for Congress to strengthen protections for workers.
Kennedy said government workers "retain the prospect of constitutional protection for their contributions to the civic discourse." They do not, Kennedy said, have "a right to perform their jobs however they see fit."
Supreme court rejects appeal in Boy Scout case
The Supreme Court rejected an appeal Tuesday from an atheist father over Boy Scout recruiting at his son's public school.
John Scalise had asked the court to bar public schools from opening their doors to Boy Scout recruiters and promoting membership, arguing that the group discriminates against nonreligious boys and parents by denying them membership if they don't swear to religious oaths.
Scalise's dispute with the Scouts dates back to 1998, when his son was a third-grader in Mount Pleasant, Mich.
He says he and his son were barred from a Scout program at the elementary school because they would not pledge "to do my duty to God and my country." They are nonreligious Humanists.
Michigan courts ruled that the school-Scout partnership did not advance religion in violation of constitutional dictates.
High court agrees to hear Philip Morris appeal
WASHINGTON - The Supreme Court said Tuesday it will decide if tobacco giant Philip Morris must pay nearly $80-million in damages to the family of a longtime smoker, a case that could shield companies from large jury awards if the company wins.
Lawyers on both sides of the issue said the case could determine whether the high court will place limits on punitive damage awards in a variety of cases beyond tobacco.
At $79.5-million, the award in the Oregon case is more than 150 times the $521,000 actual damages awarded by the jury.
Tallahassee deputy bureau chief Joni James contributed to this report, which includes information from the Associated Press and Washington Post.