Supreme Court limits free speech in workplace for public employees

WASHINGTON — The Supreme Court restricted the free-speech rights of the nation's 21 million public employees Tuesday, ruling the First Amendment does not protect them from being punished for complaining to managers about possible wrongdoing.

Although government employees have the same rights as other citizens to speak out on controversies of the day, they do not have the right to speak freely inside their offices on matters related to "their official duties," the Supreme Court said in a 5-4 decision.

"When a citizen enters government service, the citizen by necessity must accept certain limitations on his or her freedom," said Justice Anthony Kennedy, rejecting a lawsuit by a Los Angeles County prosecutor.

Lawyers for government whistle-blowers denounced the ruling. They said it could threaten public health and safety.

"In an era of excessive government secrecy, the court has made it easier to engage in a government cover-up by discouraging internal whistle-blowing," said Steven Shapiro, legal director for the American Civil Liberties Union (ACLU).

However, lawyers for city and state agencies said the decision will prevent routine internal workplace disputes from becoming federal court cases.

Employment attorney Dan Westman said the ruling frees government managers to make necessary personnel actions, such as negative performance reviews or demotions, without fear of frivolous lawsuits.

The decision threw out most of a lawsuit filed by Deputy District Attorney Richard Ceballos, who said he was disciplined after he wrote internal memos alleging a police officer lied to obtain a search warrant.

The prosecutor urged his supervisors to dismiss a pending criminal case because of police misconduct. His advice was rejected, and he was transferred to a lesser job farther from his home and denied a promotion.

Ceballos sued county officials, including then-District Attorney Gil Garcetti, alleging he was retaliated against for speaking out within the office.

Officials in the Los Angeles County District Attorney's Office said their actions arose from legitimate staff changes and contended Ceballos' report was not protected under the First Amendment. The U.S. Court of Appeals for the 9th Circuit ruled, however, that Ceballos' statements about an alleged lie in a search-warrant affidavit were "inherently a matter of public concern" protected by the Constitution.

The Supreme Court reversed that ruling Tuesday.

"The First Amendment does not prohibit managerial discipline based on an employee's expressions made pursuant to official responsibilities," Kennedy said in Garcetti v. Ceballos. The Bush administration backed the district attorney's office, citing the U.S. government's interest as "the nation's largest public employer."

The court's newest justice, Samuel Alito, cast a crucial vote to form the majority. The justices heard the case in October but were apparently split 4-4 when Justice Sandra Day O'Connor stepped down in February. It was re-argued in March. Also joining Kennedy were Chief Justice John Roberts and Justices Antonin Scalia and Clarence Thomas.

In his dissent, Justice David Souter said, "I would hold that private and public interest in addressing official wrongdoing and threats to health and safety can outweigh the government's stake" in running an efficient office.

The ruling affects only constitutional free-speech claims related to work, the court said, not the rights of public employees off the job. Nor does it affect state and federal labor laws or laws the federal government and most states, including Washington, have that are designed to protect whistle-blowers, the court said.

But advocates for whistle-blowers said these laws prove ineffective in many cases.

Stephen Kohn, board chairman for the National Whistleblower Center, said, "It's a devastating decision that, in practice, obliterates protections for about 90 percent of public workers."

Kohn said most employees who expose wrongdoing do so through official channels. And for federal employees, he said, doing so is part of their job requirement. "So what are they supposed to do?" Kohn asked.

Tuesday's decision left open the possibility that an employee might be shielded by the First Amendment if he acted as a "citizen," rather than in an official capacity, and took his complaints to a newspaper or a state legislator.

Justice John Paul Stevens, in a separate dissent, said it "seems perverse" to protect whistle-blowers who go public, while punishing those who take their concerns to their managers.

"We think this is a bad decision, but it may not be a catastrophe," said Peter Eliasberg, an ACLU lawyer in Los Angeles. "It basically says, if you go to the L.A. Times, you might get some protection. But if you report it in the office and up the chain of command, you don't have any protection under the First Amendment."

The facts in the Ceballos case remain unclear, partly because the case has not gone to trial.

And it may not be over for Ceballos, said his lawyer Humberto Guizar. He noted the court's decision focused only on the memos the prosecutor wrote to his supervisor.

Later, Ceballos testified in court for the defendant, and he spoke about the case to the Mexican-American Bar Association.

Material from The Washington Post, Gannett News Service and Knight Ridder Newspapers is included in this report.