The Supreme Court Blows It!

Great Debates
1

The Supreme Court ruled that whistle-blowers do not have any constitutional protection under the First Amendment. WTF?!?!?!

Garcetti v. Ceballos PDF

From the article in today’s Post-Dispatch

Double WTF?!?!?!

Let me see if I understand this, if you actually go to work for the public, you surrender the rights you have as a member of that public. If your boss or co-workers are then breaking the law, bringing it it to the attention of the real boss, i.e., the public, is a big no-no and not worthy of constitutional protection.

Saying an official is corrupt is a policy dispute? Trying to give information for an indictment of said official is clogging the courts? Stating you have evidence or testimony that is contrary to public statements of said official is ‘making it hard for the government to speak with a single voice.’ When has that ever been a goal of our government? When has that ever been considered a goal of our government? Where in the Constitution did these ‘strict constructionalists’ come up with that bullshit?

I want to the government to speak with as many voices as it needs, especially those that do not cow to the ‘policy’ line. This has been a small step forward for fascism, and giant leap backward for mankind.

I can see one of the greater consequences of this ruling is that those that have a conscience and so most likely to blow the whistle if necessary, will now avoid public service, which means even more lying scumbags in government.

Og help the soul who tells us about the next classified program the administration is running in flagrant violation of laws, treaties, and the Constitution.

2

Not sure I see a big worry here. This case was about an employee who allegedly was retailated against because he wrote an official finding that said a search warrant was invalid. The people who wrote that warrant harassed him, he thought his findings was First Amend. protected, its not. IANL but I would think if he pursued this as a harassment vs a First Amend issue, he might have had a case.

How does this apply to whistle blowing? Am I missing the point here?

3

This is not a first amendment issue at all. You give up certain rights when you take a job, especially one with the government. If you have a job with security clearance, you have no first amendment right to blab to the world about what you know. You take a job with Congress, you have no first amendment right when you leave that job to talk to your former boss or co-workers about certain legislation.

4

So former Congressional employees no longer have a right to turn around and hop on the lobbyist gravy train?

-Joe

5

I forgot the link to the article.Here. I don’t think registration is required.

I would have thought before I read this decision that being able to report a crime or wrongdoing would supercede any employer rights, especially in the public sector. And to be reliated against for doing his job, that blows my mind also. What the fuck was he supposed to do? Allow his office to proceed with a bogus warrant? And if it then came out, who head do you think would roll?

I find this decision completely bogus also, and hands the current administration and all future ones far too much latitude in deciding what the public has a right to know, which I feel is one of the fundamental bases of the First Amendment, that an informed electorate is essential to an effective one. That this decision seems to apply to all levels of government is even more frightening.

Renob, I know much of the case law. I just covered most of it last semester (which gives me almost no authority, I know), and I disagreed with most of it. In general, it gives far too much power to employee\rs. And I believe that no contract can override the Constitution. Unless a waiver is explicit, it should not be assumed, which the courts have unfortunately done. (That entire class was an exercise in frustration at all the decisions that made my jaw drop. I can’t wait until I take Tax Law, that’ll be a load of fun, I’m sure.)

6

I forgot to clarify my statement. I should have said that Congressional employees don’t have this right within the first year of their departure.

7

I agree this is not a first-amendment issue.

OTOH, I should hope the government has some kind of whistle-blowing policy in place.

8

They don’t have a FIRST AMENDMENT right to do that, no.

9

So the courts should assume that they have the power to read into the Constitution … what? Whatever phrases will make the First Amendment function as you believe it should?

A contract CAN “override” the Constitution. You can always choose to waive the rights the Constitution grants you. That is the law – which you acknowledge – and it’s a wise and reasoned appraoch, which you apparently don’t acknowledge.

10

Regarding this decision, I would concur with Souter’s dissent.

“As JUSTICE SOUTER explains, public employees are still citizens while they are in the office. The notion that there is a categorical difference between speaking as a citizen and speaking in the course of one’s employment is quite wrong. Over a quarter of a century has passed since then-Justice Rehnquist, writing for a unanimous Court, rejected “the conclusion that a public employee forfeits his protection against governmental abridgment of freedom of speech if he decides to express his views privately rather than publicly.” Givhan v. Western Line Consol. School Dist., 439 U. S.”

And, please, tell me, do you agree with every ‘wise and reasoned approach’ the Supreme Court has applied to every reasoning they have made? Do you agree with every principle they have espoused in producing those reasonings?

And the justices seem to have no problem reading whatever phrases into the Constitution to make the First Amendment function as they believe it should. And I have no right to question and disagree with those readings?

“The effect of the majority’s constitutional line between these two cases, then, is that a Givhan schoolteacher is protected when complaining to the principal about hiring policy, but a school personnel officer would not be if he protested that the principal disapproved of hiring minority job applicants. This is an odd place to draw a distinction, and while necessary judicial line-drawing sometimes looks arbitrary, any distinction obliges a court to justify its choice. Here, there is no adequate justification for the majority’s line categorically denying Pickering protectionto any speech uttered “pursuant to . . . official duties”…”

Again, I concur with Souter.
And I have no right to question and disagree with those readings?

What exactly is your critique of my argument?

And you misrepresent what I wrote. One, not all constitutional rights can be waived, even by contract. Two, waivers of ones rights should remain with person who wishes to do so, not have that decision superceded by the courts. IMO, that oversteps their bounds under the Constitution.

And from how I read it, this Court broke the precendent set by Givhan with no justifiable reason. And I am certainly willing to argue that interpretation.

[quote=b5d I agree this is not a first-amendment issue.[/quote]

No offense, but did you even look at the decision. First Amendment issues are the only ones discussed.

11

The upshot of the decision, as I read it, is that if you are a public employee who, as in this case, writes or says something that your public employer does not like, and they retaliate against you, they have not violated your First Amendment rights to free speech, although they may have violated a whistle-blower law in your state.

I’d say the court absolutely got it wrong on this one. If an employee of the government can not speak his mind about the actions of that government without fear of retaliation, the First Amendment right to free speech is useless. Until this nonsense can be reversed by a future court, we must strive to elect presidents and congresspeople who will ignore this decision entirely.

It’s high time for a Constitutional Convention in this country, and the principle of Judicial Review must be encoded into law this time, with clear bounds on its scope. Deciding what is constitutional or not does not include declaring that the constitution says something is black when its words say it is white.

12

:dubious: How exactly would you word that?

13

Hmmm. IMO, you’re half right and half wrong here, Bricker. Yes, a contract can “override the Constitution” in the sense you give. If you were to employ me as a legal secretary, my obligation of confidentiality to you and to your clients supersedes any First Amendment right I may have to discuss your clients’ affairs with whom I choose – which I would otherwise have every right to do, should I become aware of them. They might sue me, to be sure, but no governmental entity would have the power to shut me up. But you do, by your terms of employment.

So far, so good. A citizen does not have the right to play whistleblower contrary to his terms of employment, in general terms, unless the legislature finds that public policy is served by so authorizing and protecting him in doing so. For example, a medical secretary might not only be allowed but required to turn in her pediatrician boss’s best adult clients for felony child abuse.

So your assertion, so far, is correct. An employee does not have the prerogative of using his freedom of speech to reveal that which is contrary to the conditions of his employment, unless the legislature so permits or requires.

But the other half of the package is where we disagree. It would be my strong contention that a governmental body or official does not have the power to impose conditions on an employee’s terms of employment which bar that employee from exposing malfeasance or nonfeasance in that agency or official’s public duties.

I suspect there is a balancing issue here – a requirement that an employee keep confidential an unpublicized screw-up and the consequent efforts of the agency to correct that screw-up and do their civic duty, for example, might be very much upholdable. No one is obliged to have their every mistake placed in a goldfish bowl on public display. If staffer X, an employee of agency B, violates the public trust, director J of agency B fires staffer X and takes steps to correct the wrongdoing, staffer Y is not privileged to bring this whole story to the muckraking press if prohibited by his/her terms of employment from doing so. On the other hand, if director J colludes in the violation of the public trust and does not fire staffer X or take steps to right the wrong done by him, then perhaps staffer Y is released from his/her terms of employment in the interest of ensuring that public policy is properly carried out.

Bottom line to me, I think, is that there is no constitutional right inherent in holding a public office to use terms of employment to deceive the public into believing that the agency is acting properly in accordance with relevant law when the reverse is true. At that point, I believe, it rests with the conscience of staffer Y what steps are appropriate to take.

14

And you find that right, complete with the balancing test you mention, in the First Amendment?

15

In some respects yes, some no, and don’t assume without consulting a lawyer. Any provision of a contract that is illegal or against public policy (there’s a lot of case law spelling out the latter) is considered void, and unenforceable by any court of law. As for provisions of the Constitution – see if you can get any court to enforce a contract whereby A sells himself to B as a slave or indentured servant.

16

The whistleblower’s right to speech was not abridged, he suffered sanctions as an employee. Had he been jailed for his offense, or had his personal computer or papers siezed to prevent him from expressing his views, I could see a First Amendment issue.

Demoting someone does not silence him. (It certainly did not silence this individual, who has now been able to broadcast his views not just to the county, but to the nation at large.)

I agree that this country could use more (or better) whistleblower safeguards, but I would not want to see the First amendment used to prevent a corporation or government entity from protecting the data it holds.
Should a whistleblower be protected who feels that certain witness protection plans have been abused and publishes the names and addresses of those enrolled to rectify the situation?

17

Perhaps something is already there, I do not claim to be a constitutional scholar.

Suppose Bush or his successor to choose a far out example, were to quarter troops in people’s homes, against the owner’s will, along the US-Mexico border (“in order to thwart illegal immigration”), because he claimed to lack the tax revenue to build new barracks.

So someone sues because the government has violated their 3rd Amendment rights, and the appeals reach the SCOTUS.

What exactly, admitting that this whole scenario is entirely unlikely, is to prevent them from ruling, in legally binding fashion, that despite the fact that the 3rd Amendment reads “No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner…” from “interpreting” it to say that it does not mean the government can not quarter troops in people’s homes against their will. Not that this particular situation constitutes a de facto state of war, or anything else specific to the case above that I pulled out of my ass, or saying there exist extenuating circumstances in general where the amendment does not apply.

In essence, a phrase appears in the Court’s decision which says: “It is the Opinion of this Court that the consent-of-the-owner-during-peacetime Clause of the Third Amendment does in no way imply that soldiers can not be quartered in any house during peacetime without the owner’s consent.”

Other than the individual Justices’ sense of surreal absurdism, what prevents them from saying something along these lines under the current system of Judicial Review, other than fear of whatever system exists for removal of a Justice (which would happen after the fact, and alter the decision not at all)?

It seems to me, and perhaps this is only my ignorance talking, that the current tradition of Judicial Review leaves the Constitution essentially wordless. It only says what the Court says it says, and there is no check or balance to this power. I would like to see such a check and balance codified into the stucture of our federal government, assuming it is not already there.

18

Ugh. The majority opinion looks like an academic freedom nightmare waiting to happen. They go on and on about cases like Pickering v. Board of Education, and then they turn around and drop this:

Nothing I say in a classroom setting doesn’t owe its existence to my professional responsibilities. The majority seems to have just concluded that my First Amendment rights as an educator end the moment I step into a classroom. Lovely.

It seems Souter’s dissent has a few choice words to say about this as well.

19

I don’t see the first amendment issue here either.

I do believe in strong safeguards for whistleblowers, but I don’t see where such is guranteed by the first amendment.

20

No. Hugo Black found it there: “Congress shall make no law.” His colleagues found the balancing tests somewhere, probably in the Due Process Clause (we’re both aware you can find anything you want in there, if you work at it! ;))

What I’m finding is the absence of a power vested in public officials to abrogate their underlings’ right to freedom of speech simply because it suits them to do so. I modified that by saying that there may be circumstances where public policy permits such abrogation, in the interests of good government, whence the balancing test.