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Internal whistleblowing and the first amendment
October 12, 2005 by Ross Runkel at LawMemo

What 1st amendment protection - if any - surrounds a public employee who "blows the whistle" internally as part of that employee's duties?

That's my statement of the issue in Garcetti v. Ceballos, argued today in the US Supreme Court.

Ceballos sued his employer (the County) and his supervisors claiming they retaliated against him in violation of the 1st amendment. Ceballos wrote a memorandum to his supervisor in which he claimed that a deputy sheriff had lied in an application for a search warrant. Ceballos claimed that he was demoted in retaliation for this. The trial court granted summary judgment for the individual defendants on the ground of qualified immunity. The 9th Circuit reversed, saying "the law was clearly established that Ceballos' speech addressed a matter of public concern and that his interest in the speech outweighed the public employer's interest in avoiding inefficiency and disruption."

The real question is whether Ceballos was speaking "as a citizen," within the meaning of Connick v. Myers, 461 US 138 (1982). The employer argued that public employees are not protected by the 1st amendment when their speech is uttered in the course of carrying out their employment obligations.

My view: The 9th Circuit was wrong. Either Ceballos gets no 1st amendment protection at all, or he gets so little that the employer wins in the "balancing" process. Otherwise the courts will become the supervisors of all manner of things employees say to their supervisors. Speaking out to the public is one thing. What an employee says to the supervisor warrants little or no constitutional protection.

According to SCOTUSblog's report on today's oral arguments, there is an easy majority in support of the public employer.

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