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Slate's Jurisprudence: Rights of Whistle-Blowers


Government whistleblowers beware. Your free speech rights are complicated. That word today from the U.S. Supreme Court. In a five-to-four decision, the justices ruled against a prosecutor who had tried to blow the whistle on some questionable police work. Dahlia Lithwick is legal analyst for the online magazine Slate and for DAY TO DAY. Dahlia, welcome back. How about the details of this case?

Ms. DAHLIA LITHWICK (Legal Analyst, Slate Magazine): Sure. This is, as you say, a case about the rights of government employees to speak while on the job. This was a county deputy D.A., Richard Ceballos, who was bothered by the police conduct that they used to obtain a search warrant.

First, he complained to his superiors. He wrote a memo. Then he said something to the opposing defense attorney, and he says he suffered retaliation because of that, so he sued in federal court saying that his First Amendment right to speak freely had been violated by his bosses.

CHADWICK: And what the court said today was, no, it wasn't. You don't actually have that right.

Ms. LITHWICK: Well, that's right. The court was struggling with sort of balancing these two interests. One is the right for whistleblowers to come forward and talk about government misconduct. The other is for government to be able to manage their workers without every single one of them kind of constantly whining and kvetching about how their superiors do their job.

And so by a five-four vote today, the Supreme Court said that, no, you're on-the-job speech by government employees is not protected under the First Amendment to preclude this kind of retaliation. And writing for the majority of the court, Justice Anthony Kennedy said, quote, "The First Amendment does not prohibit managerial decisions based on an employee's expressions made pursuant to his official responsibilities."

CHADWICK: So this is just management saying, look, this is a detail of our work, and you're not supposed to tell this to opposing counsel, and that's it. This is a reasonable decision.

Ms. LITHWICK: Precisely, and the dissenters say, wait a minute. Maybe some of that is implicated here, but a lot more is implicated because what about genuine whistleblowers who have genuinely serious concerns about how their bosses do their jobs? And remember, we're in pretty fraught times. We're all thinking about the need for whistleblowers.

And so Justice John Paul Stevens, writing on behalf of the four dissenters said, the proper answer to this question of whether the First Amendment protects a government employee from discipline is just not never. It's sometimes, and the court's decision today, that it's never protected, he says, sweeps in a lot of really important speech.

CHADWICK: So this case actually was first argued in October, but then reargued after Justice Sandra Day O'Connor retired and Samuel Alito replaced her. What do you read into that?

Ms. LITHWICK: Well, it means that probably after O'Connor stepped down, the court was split four-four, and that means that Justice Alito's vote, that fifth vote to go with the majority, was the key deciding vote.


Ms. LITHWICK: And I think we're going to see a lot of that in the future.

CHADWICK: So you see a Justice Alito vote here, also Justice Kennedy participating in this majority decision. Is this the new court majority?

CHADWICK: Well, that's the burning question, Alex, that this is the sort of four, quote, "reliable conservatives," and that fifth swing voter Anthony Kennedy, who has tended to side with the conservatives in the past. So certainly, it looks a little bit like it's shaping up to be that sort of five-four block, with Kennedy tending to throw his weight in with the conservatives.

We've heard a lot in the last couple of weeks about the number of unanimous decisions coming out of this court. I think today's is a good example of when the rubber hits the road, we still have some real ideological differences on this court.

CHADWICK: Opinion and analysis from Dahlia Lithwick. She covers the courts for the online magazine Slate and for DAY TO DAY. Dahlia, thank you again.

Ms. LITHWICK: It's my pleasure. Transcript provided by NPR, Copyright NPR.