The United States Supreme Court lined up behind the government and against individual rights in a whistleblower case that is sure to chill employee
disclosure of government wrong doing. Respondent in the case, Ceballos, was a supervising deputy district attorney for Los Angeles County. Ceballos
was asked by a defense lawyer to review a questionable affidavit supporting a search warrant. Ceballos determined that there were serious
misrepresentations in the affidavit by the officer signing it and recommended dismissal of the criminal action in a memo to his superiors. The case
was not dismissed and Ceballos later filed this lawsuit alleging retaliation against him by his employer for his exercising his First Amendment rights
in drafting the memo against the apparent perjury to obtain a warrant.
GOVERNMENT SECRECY/FREE SPEECH
Reviewing whether a government whistleblower forfeits all First Amendment protection by speaking out in the course of his or her job.
A deputy district attorney in Los Angeles alleged that his superiors retaliated against him for suggesting that a criminal prosecution should be
dismissed because it was tainted by police misconduct. Both the county and the United States concede that this speech involved a matter of public
concern but argue that it was nonetheless unprotected by the First Amendment because it was made in the course of the plaintiff's normal job
responsibilities. The ACLU's amicus brief challenges this cramped view of the First Amendment as both unprecedented and unwise.
Please visit the link provided for the complete story.
This was a split decision with the votes lined up as expected. Kennedy, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia,
Thomas, and Alito, JJ., joined. The high Court reversed the Ninth Circuit Court of Appeals which had reversed the District Court which had granted
summary judgment to the county and dismissed the lawsuit. The Ninth Circuit relied upon precendent which held that public employees who speak out in
the employment setting but on an issue of public relevance and import. The Ninth Circuit found that the reporting of governmental misconduct (the
bogus affidavit) was "a matter of inherently public concern" where the speech is entitled to First Amendment protection.
The Supreme Court found that the fact that Ceballos spoke as a prosecutor fulfilling a responsibility to advise his supervisor about how best to
proceed with a pending case -- distinguishes Ceballos' case from those in which the First Amendment provides protection against discipline. Thus,
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.
The upshot is that when a government employee does his/her job and contests illegal government activity that employee will be subject to whatever
retaliatory measures the government can think up, including termination. In this era of government secrecy and the necessity of its employees to be
willing to lay it on the line for the public good, the good of the democracy, which relies necessarily on a transparent government, secrecy is likely
to increase along with government wrong doing. Considering the result was the issuance of an unlawful criminal search warrant which resulted in an
individual's loss of freedom, we just lost an important weapon in our own fight for freedom.
Related News Links:
[edit on 1-6-2006 by DontTreadOnMe]