WASHINGTON — The Bush administration today pressed the Supreme Court for a ruling that would make it harder for government whistleblowers to win lawsuits claiming retaliation.
Justices seemed conflicted on where to draw the line in protecting the First Amendment speech rights of more than 20 million public employees.
In a lively hour-long session, justices talked about the importance of preserving the privacy of some government work, like the high court's own deliberations. Though there were also concerns about the concealment of government misconduct.
"We live in a world where people are leaking things all the time," said Justice Stephen Breyer, adding that he was uncomfortable giving government employees blanket protection for things they say.
Other justices also struggled as they reviewed a 9th U.S. Circuit Court of Appeals ruling in favor of a Los Angeles prosecutor who said he was demoted and denied a promotion for trying to expose a lie by a county sheriff's deputy in a search warrant affidavit.
Bush administration lawyer Dan Himmelfarb said workers who feel like they've been wrongly punished can file a civil service complaint. He said that government employees are not entitled to free-speech coverage for things they say in the scope of their jobs, like writing a memo.
Bonnie Robin-Vergeer, the attorney for prosecutor Richard Ceballos, said that about 100 such lawsuits are filed each year and that employees should know they cannot be fired for speaking out when they see wrongdoing.
In Pickering v. Board of Education (1968) and Connick v. Myers (1983), the Supreme Court has ruled that the First Amendment can protect public employees’ speech if that speech addresses matters of public concern rather than personal grievances. Under the Pickering-Connick test, public employees must show that their speech touches on matters of public concern. If they can clear this threshold, then the Court balances the employees’ free-speech interest against the employer’s interest in an efficient, disruptive-free workplace.
The current Court is using Garcetti v. Ceballos 04-473 to clarify the protection.
Stephen M. Kohn, a leader with the National Whistleblower Center, said that a victory for the government would mean "whistleblowers who expose waste, fraud and corruption will have less constitutional protection than Ku Klux Klan members who burn crosses on their front lawns."
The 9th Circuit ruled that Ceballos' speech, a memo questioning the affidavit, was constitutionally protected and that Ceballos could pursue a lawsuit.
Justice Ruth Bader Ginsburg seemed sympathetic to Ceballos, saying "this is a person whose job includes being candid, serving justice, serving truth."
But many other justices appeared ready to side with the district attorney's office.
Justice Anthony Kennedy said the Court's decision could affect inner workings of every government office at every level. Justice Antonin Scalia said that there could be arguments that office gossip, about extramarital affairs, could be revealed to reporters on grounds that it was free speech.