On, May 30, Justice Samuel
Alito cast his first deciding vote, and in doing so struck a blow
for muzzling public servants at all levels of government. The 5-4
majority in Garcetti v. Ceballos held that public servants have no
First Amendment rights in their role as government employees.
This decision makes it easier to punish people who work
for government for uttering inconvenient truths; public employees
will be far more reluctant to voice concerns to their bosses
— making for very chilly cubicles.
The case
involved Richard Ceballos, a deputy district attorney in Los
Angeles County who was concerned that a search warrant affidavit
prepared by the sheriff’s office appeared bogus. After reviewing
the evidence and interviewing the deputy who swore the affidavit,
he became convinced that something was amiss. He then wrote a memo
urging the withdrawal of the search warrant. For his troubles,
Ceballos was transferred and ostracized.
In other
contexts, Richard Ceballos would be the public servant protesting
to higher-ups about the “interrogation” techniques at Abu Ghraib,
sounding the alarm about weak levees in New Orleans or exposing
suppression of global-warming science. But as Ceballos discovered,
managers rarely reward whistleblowers, and under the Supreme
Court7;s formulation, telling the truth is no defense against
management retaliation.
Public employees will now point
out problems to supervisors only at their own risk. To compound
matters, many whistleblower statutes also exclude disclosures made
within the scope of duties. Thus, internal agency communications
often lack any legal protection whatsoever.
For private
citizens, this will undoubtedly make an increasingly opaque
government even less transparent. It is far harder to monitor the
inner workings of government if public servants are reluctant to
place discordant information on the record and on the job. When
combined with the almost obsessive message-control of the Bush
administration, this decision further legitimizes suppression of
information as official policy.
Paradoxically, the court
held that civil servants enjoy First Amendment rights when they act
outside their work role and go public. In other words, an agency
professional who tries to resolve problems in-house risks being
fired, but that same person who plasters the issue across the front
page of the paper is constitutionally protected. From the
standpoint of government efficiency, it makes no sense to protect
statements made in public but punish those same statements when
uttered within the confines of the workplace.
Justice
Anthony Kennedy, writing for the majority, pooh-poohed this
“anomaly,” writing, “Giving employees an internal forum for their
speech will discourage them from concluding that the safest avenue
of expression is to state their views in public.” Perhaps he’s
thinking of suggestion boxes. Justice Kennedy misses the real
anomaly that any government agency willing to suppress employee
dissent through discipline or termination is not much interested in
employee criticism at all.
As a practical matter, most
public-agency specialists try to resolve matters internally. Since
they are the agency’s experts, they are usually convinced of the
rightness of their position, and their natural inclination is to
elevate an issue up the chain-of-command until wisdom prevails.
Under Ceballos, that internal elevation will more likely become a
descent into a career inferno.
Perhaps even more
troubling is the central premise of the ruling, that public
employees per se have no citizenship status because their speech is
owned by the government. This judicial reduction places public
workers on a constitutional par with prisoners.
The
boogeyman raised by conservative commentators is that we do not
want to constitutionalize the government workplace. That argument
fails for two reasons: The Ceballos ruling now requires federal
courts to wade in and figure out whether employees are speaking in
their roles as citizens or as part of their job, in some instances
an elusive distinction; and, the government workplace is already
constitutionalized with due process guarantees, buttressed by civil
service rules. All the Ceballos court did was remove constitutional
involvement in matters of public interest, limiting the role of the
Constitution to policing private interests.
The only door
the Court left ajar is for Congress and state legislatures to enact
stronger and broader whistleblower protection laws. In the
meantime, candor inside government will become an even rarer
commodity.
Jeff Ruch is a contributor to
Writers on the Range, a service of High Country
News (hcn.org). He is the executive director of Public
Employees for Environmental Responsibility (PEER), an organization
that works with government whistleblowers in Washington,
D.C.
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