Whistle-Blower

Due to a recent United States Supreme Court decision, speech made pursuant to a public employees official duties is not protected by the First Amendment. In response, the US Senate approved an amendment that would largely restore whistleblower protections for federal employees who expose waste, fraud, abuse, and threats to public safety.

The recent Supreme Court decision was that of Garcetti v. Ceballos. Mr. Garcetti was the District Attorney, Mr. Ceballos supervisor. Mr. Ceballos was a supervising deputy district attorney, meaning he supervised lawyers. He suffered retaliation and job loss after reporting, in a memo to his supervisors, about serious misrepresentations in a sworn affidavit in a case he was reviewing. The District Court granted summary judgment in favor of Garcetti. The court explained that speech made in an official capacity is not protected by the First Amendment because they are statements made as an employee and not as a protected citizen.

Ceballos appealed the decision to the Ninth Circuit. The Ninth Circuit held that the memo was protected by the First Amendment. The Ninth Circuit relied on previous case analyses of what is protected under the First Amendment. The Court’s position was essentially that a federal employee is a citizen and therefore has First Amendment protection limited only by restrictions necessary for the government to operate efficiently and effectively.

Garcetti, of course, appealed the Ninth Circuit’s decision and took the case to the United States Supreme Court. On May 30, 2006, the Supreme Court reversed the Ninth Circuit and declared that Mr. Ceballos memo was not entitled to First Amendment protection.

As a result of this decision, there is a distinct line between communications from an employee and those from a citizen. That is, when a public employee makes any statement to anyone, including co-workers, it is either protected as coming from a citizen or not protected as coming from within an employee’s official capacity.

Whistleblower advocates in the US Senate took action by approving an amendment to combat the decision in Garcetti v. Ceballos. This amendment attempts to protect federal employee whistleblowers. Senator Daniel Akaka (D-Hawaii) led the bipartisan group of Senators who aided in getting the amendment approved. Other Senators included Susan Collins (R-Maine), Charles Grassley (R-Iowa), Richard Durbin (D-Illinois), Carl Levin (D-Michigan), and Joseph Lieberman (D-Connecticut). This is a tremendous step toward protecting whistleblowers and restoring protection to pre-Garcetti levels. The next step for the amendment is to go before House-Senate negotiators who will write a final bill

Despite the set back of Garcetti v. Ceballos, things are looking up for whistleblower advocates as demonstrated by the Senate’s amendment. Keep your fingers crossed!