June 1, 2006

U.S.Supreme Court Ruling Limits First Amendment Rights of Government Whistleblowers While Performing Their Duties; Public Employees Unprotected From Retaliation for Speaking Out in the Workplace

Statement of Bonnie Robin-Vergeer, Attorney, Public Citizen Litigation Group

The U.S. Supreme Court’s 5-to-4 decision this week in Garcetti v. Ceballos limiting constitutional free-speech protections for public employees in the course of performing their official duties strikes a blow to public welfare and safety. In light of the Court’s ruling, the nation’s 21 million federal, state and local employees will not have First Amendment protection from punishment or retaliation for exposing misconduct if it is communicated as part of their jobs, even though speaking up within the government is often critical to the health and safety of the public.

The ruling affects exactly the class of workers who are best positioned to expose governmental mismanagement, waste, fraud and abuse, and will have a chilling effect on workplace speech of critical public importance. For instance, if a Federal Emergency Management Agency hurricane preparedness specialist raised concerns to his superior that the agency was unprepared for the next hurricane, the employee could be fired or otherwise punished for being the bearer of unwelcome news.

Government employees who have the most information about what ails an agency must have an avenue to communicate issues of public importance. The only other options for potential government whistleblowers are to remain silent or to air problems in a public forum rather than using internal channels that are most likely to avoid workplace disruption. Surely this is not the best method for guaranteeing the efficient performance of government and for ensuring public safety.

Given the Supreme Court’s opinion, Congress, states and localities should act promptly to strengthen whistleblower protections for public employees, particularly those who are the bearers of bad news while performing their jobs and are thus in the most knowledgeable position to expose government waste, fraud or incompetence. Our very safety could depend upon it.

Note: The employee in Garcetti v. Ceballos – Richard Ceballos – was represented in the Supreme Court by Public Citizen Litigation Group attorney Bonnie Robin-Vergeer.

The majority opinion was written by Justice Anthony M. Kennedy, joined by Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. Dissenting were Justice David H. Souter who wrote an opinion joined by Justices John Paul Stevens and Ruth Bader Ginsburg. Justices Stephen G. Breyer and Stevens each filed dissenting opinions.

“[P]rivate 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 and when they do public employees who speak on these matters in the course of their duties should be eligible to claim First Amendment protection,” Souter wrote.

Wrote Stevens, “[I]t seems perverse to fashion a new rule that provides employees with an incentive to voice their concerns publicly before talking frankly to their superiors.”

To read Public Citizen’s brief, the decision and dissenting opinions, click here.

To listen to a NPR All Things Considered interview with Robin-Vergeer, click here.