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Magpie is a former journalist, attempted historian [No, you can't ask how her thesis is going], and full-time corvid of the lesbian persuasion. She keeps herself in birdseed by writing those bad computer manuals that you toss out without bothering to read them. She also blogs too much when she's not on deadline, both here and at Pacific Views.

Magpie roosts in Portland, Oregon, where she annoys her housemates (as well as her cats Medea, Whiskers, and Jane Doe) by attempting to play Irish music on the fiddle and concertina.

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Tuesday, May 30, 2006

Dubya's latest Supreme Court appointments are starting to pay off.

And we hope that all of those Democratic and 'moderate' GOP senators who voted to confirm Roberts and Alito are really happy with the fruits of their spinelessness.

Today, those two new members of the Supremes flexed their muscles in an important decision limiting the legal protections for government whistle-blowers. On a 5-4 vote, the Supreme Court ruled that government employees are not protected by the First Amendment when carrying out their official duties — even if they are speaking out to expose alleged wrongdoing by the government. According to the Court's majority, anything a government employee says while carrying out their job is, in effect, a government pronouncement. Because of this, the government has the right to keep employees' speech consistent with government policy and needs.

Today's ruling came in a the case of Garcetti v. Ceballos, in which LA County prosecutor Richard Ceballos sued his employer (former LA County district attorney Gil Garcetti) for demoting him after he'd written a memo in which he argued that a sheriff's deputy had lied when asking for a search warrant. Ceballos argued that this memo should have been protected speech, since the question of whether the Sheriff's office tells the truth when asking for warrants is a matter of public concern. And, said Ceballos, the DA's office acted wrongly when it retaliated against him by demoting him and denying promitions. On the other hand, district attorney Garcetti argued that Ceballos' memo was not protected speech. Since Ceballos wrote that memo in his capacity as an employee of the DA's office — not in his capacity as a citizen — the First Amendment didn't apply.

When the case went to the 9th US Circuit Court of Appeals, that court sided with Ceballos, ruling that the DA's office had illegally retaliated against him for exercising his free-speech rights. Today, however, the new majority on the US Supreme Court tossed that earlier ruling away.

It's worth looking at part of the majority opinion to see how far the Court's right wing have gone in their gutting of First Amendment protection of the speech of government employees:

The controlling factor in Ceballos' case is that his expressions were made pursuant to his duties as a calendar deputy.... That consideration — the fact that Ceballos spoke as a prosecutor fulfilling a responsibility to advise his supervisor about how best to proceed with a pending case — distinguishes Ceballos' case from those in which the First Amendment provides protection against discipline. We hold that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline....

Ceballos did not act as a citizen when he went about conducting his daily professional activities, such as supervising attorneys, investigating charges, and preparing filings. In the same way he did not speak as a citizen by writing a memo that addressed the proper disposition of a pending criminal case. When he went to work and performed the tasks he was paid to perform, Ceballos acted as a government employee. The fact that his duties sometimes required him to speak or write does not mean his supervisors were prohibited from evaluating his performance.
[Emphasis mine]

Do you see what the majority is saying? When you go work for the government, you leave your right to free speech at the door. If you have the temerity to point out wrongdoing to your employer — or even to disagree with your employer — you're not protected by the First Amendment. While the Court doesn't forbid you from speaking out, it also gives your employer the right to fire you or to retaliate in other ways.

Nice, huh?

You can get a sense of the questionable basis for the majority's opinion by the fact that all four of the minority justices either wrote or joined in dissenting opinions. [All emphasis is mine]

From the dissent of John Paul Stevens, in which he challenges the majority's notion that you can draw a line between the protected speech of a citizen and the unprotected speech of an employee — especially in the case of 'unwelcome speech' that 'reveals facts that the supervisor would rather not have anyone else discover':

[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 [in Givhan v. Western Line Consol. School Dist.], 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...." We had no difficulty recognizing that the First Amendment applied when Bessie Givhan, an English teacher, raised concerns about the school?s racist employment practices to the principal.... Our silence as to whether or not her speech was made pursuant to her job duties demonstrates that the point was immaterial. That is equally true today, for it is senseless to let constitutional protection for exactly the same words hinge on whether they fall within a job description. Moreover, it seems perverse to fashion a new rule that provides employees with an incentive to voice their concerns publicly before talking frankly to their superiors.

From the dissent of Stephen Breyer, in which he essentially accuses the majority of crafting a legal nuclear weapon to solve a nonexistent problem:

Like the majority, I understand the need to "affor[d] government employers sufficient discretion to manage their operations...." And I agree that the Constitution does not seek to "displac[e] ... managerial discretion by judicial supervision...." Nonetheless, there may well be circumstances with special demand for constitutional protection of the speech at issue, where governmental justifications may be limited, and where administrable standards seem readily available — to the point where the majority's fears of department management by lawsuit are misplaced....

The respondent, a government lawyer, complained of retaliation, in part, on the basis of speech contained in his disposition memorandum that he says fell within the scope of his obligations under Brady v. Maryland, 373 U. S. 83 (1963). The facts present two special circumstances that together justify First Amendment review.

First, the speech at issue is professional speech — the speech of a lawyer. Such speech is subject to independent regulation by canons of the profession. Those canons provide an obligation to speak in certain instances. And where that is so, the government's own interest in forbidding that speech is diminished....

Second, the Constitution itself here imposes speech obligations upon the government's professional employee. A prosecutor has a constitutional obligation to learn of, to preserve, and to communicate with the defense about exculpatory and impeachment evidence in the government's possession.... So, for example, might a prison doctor have a similar constitutionally related professional obligation to communicate with superiors about seriously unsafe or unsanitary conditions in the cellblock.... There may well be other examples.

Where professional and special constitutional obligations are both present, the need to protect the employee's speech is augmented, the need for broad government authority to control that speech is likely diminished, and administrable standards are quite likely available. Hence, I would find that the Constitution mandates special protection of employee speech in such circumstances.

And this part of a dissent by David Souter (in which he was joined by Justices Stevens and Ruth Bader Ginsburg) is especially worth noting:

This ostensible domain beyond the pale of the First Amendment is spacious enough to include even the teaching of a public university professor, and I have to hope that today's majority does not mean to imperil First Amendment protection of academic freedom in public colleges and universities, whose teachers necessarily speak and write "pursuant to official duties."

I'd also point to something else that indicates the political nature of today's whistleblower decision. The Court originally heard arguments in this case last fall, while Sandra Day O'Connor was still a justice. However, the Court reheard the case early this year, so that O'Connor's replacement — arch-conservative Samuel Alito — could take part in the ruling.

My reading is that Chief Justice Roberts knew that if O'Connor had participated in the ruling, the decision would have gone the other way, and affirmed Ceballos' First Amendment rights. Instead, Roberts held the case over until O'Connor's replacement was confirmed, ensuring a Court majority in favor of rolling back free speech.

So will the goddamn Democrats stop being so nice and accommodating about Dubya's judicial appiontments now?

Via Paper Chase.

| | Posted by Magpie at 9:27 AM | Get permalink




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