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For Expanding State Power, Just Add Strip Search Sammy

[ 1 ] May 30, 2006 |

George Bush’s drive to consolidate power and squelch dissent from dissenting professionals in the civil service got a boost today, as his appointment of Alito paid immediate dividends:

The Supreme Court on Tuesday made it harder for government employees to file lawsuits claiming they were retaliated against for going public with allegations of official misconduct.

By a 5-4 vote, justices said the nation’s 20 million public employees do not have carte blanche free speech rights to disclose government’s inner-workings. New Justice Samuel Alito cast the tie-breaking vote.

Justice Anthony M. Kennedy, writing for the court’s majority, said the First Amendment does not protect “every statement a public employee makes in the course of doing his or her job.”

The decision came after the case was argued twice this term, once before Justice Sandra Day O’Connor retired in January, and again after her successor, Alito, joined the bench.

The ruling sided with the Los Angeles District Attorney’s office, which appealed an appellate court ruling which held that prosecutor Richard Ceballos was constitutionally protected when he wrote a memo questioning whether a county sheriff’s deputy had lied in a search warrant affidavit.

Ceballos had filed a lawsuit claiming he was demoted and denied a promotion for trying to expose the lie.

Dissenting justices said Tuesday that the ruling could silence would-be whistleblowers who have information about governmental misconduct.

Souter has a detailed and powerful dissent. He’s particularly strong on the potential implications of this new doctrinal creation; as he notes, “[t]his 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.” Stevens has a short dissent summing up the issues:

The proper answer to the question “whether the First Amendment protects a government employee from discipline based on speech made pursuant to the employee’s official duties,” is “Sometimes,” not “Never.” Of course a supervisor may take corrective action when such speech is “inflammatory or misguided.” But what if it is just unwelcome speech because it reveals facts that the supervisor would rather not have anyone else discover?

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.” 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. See id., at 413–416. 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.

While today’s novel conclusion to the contrary may not be “inflammatory,” for the reasons stated in Justice Souter’s dissenting opinion it is surely “misguided.”

We cannot be sure, of course, how O’Connor would have voted. It’s worth nothing that she did dissent in Rust v. Sullivan, the abortion “gag order” case that the majority cites (albeit on statutory grounds.) Since Souter, who regrettably joined the majority in Rust, didn’t think that it has the broad implications that the majority claims, however, and given that the dissent’s First Amendment reading is the kind of balancing test that O’Connor was fond of, it seems very likely that she would have been a fifth vote the other way.

…UPDTE: More from Balkin and Lederman.

Christy: “That the decision came down as I was reading this LATimes story about dissenters in Russia being institutionalized in large numbers again is ironic at best.”

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