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Justices limit whistle-blower rights

Challenge speech protections for public workers

WASHINGTON -- The Supreme Court yesterday bolstered government's power to discipline public employees who make charges of official misconduct, ruling that the First Amendment does not protect those who blow the whistle in the course of their official duties.

By a vote of 5 to 4, the court ruled the Los Angeles County district attorney's office did not violate prosecutor Richard Ceballos's freedom of speech by allegedly demoting him after he wrote to supervisors charging that a sheriff's deputy had lied to get a search warrant.

Dissenters on the court, civil libertarians, and public employee unions said the ruling, which extends to all the nation's public employees, could deter government workers from going to their bosses with evidence of corruption or ineptitude.

But, the court ruled, recognizing claims like Ceballos's could turn bureaucratic policy disputes into federal constitutional lawsuits, disrupting public administration, clogging courts, and making it hard for government to speak with a single voice.

The Bush administration backed the district attorney's office, citing the US government's interest as ``the nation's largest public employer."

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 whistle-blower protection statutes, the court said.

In his opinion for the court, Justice Anthony Kennedy wrote that those ``powerful" rules still ``provide checks" on supervisors.

``We reject, however, the notion that the First Amendment shields from discipline the expressions employees make pursuant to their professional duties," Kennedy wrote. ``Our precedents do not support the existence of a constitutional cause of action behind every statement a public employee makes in the course of doing his or her job."

Kennedy was joined by Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas, and Samuel A. Alito Jr.

But Kennedy's opinion drew a sharp dissent from Justice David H. Souter, who argued that statutory and other protections for whistle-blowers are weak. Justices John Paul Stevens and Ruth Bader Ginsburg joined Souter. Justice Stephen G. Breyer dissented in a solo opinion.

Instead of barring all free-speech claims relating to public employees' official duties, Souter wrote, the court should have let lower courts assess them case-by-case. ``Private and public interests in addressing official wrongdoing and threats to health and safety can outweigh the government's stake in the efficient implementation of policy," Souter wrote, ``and when they do, public employees who speak on these matters in the course of their duties should be eligible to claim First Amendment protection."

In a separate opinion, Stevens questioned the court's distinction between speech by public employees acting officially, which gets no free-speech protection, and speech by public employees acting as citizens -- such as a letter to the editor -- which can still get protection.

``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," Stevens wrote.

Souter raised the specter of threats to state university professors' free speech, but Kennedy said teaching and scholarship were beyond the scope of the case.

The case added a note of division to a Supreme Court term that had been marked by many unanimous opinions under Roberts, who has publicly called for more consensus on the court.

Indeed, it appears to have divided the court since it was first argued on Oct. 12. It was one of three cases set down for re-argument after former Justice Sandra Day O'Connor left the court on Jan. 31, with Alito taking her place.

Although the court did not say why it needed another hour of oral argument on March 21, the likeliest reason is that O'Connor left behind a 4-to-4 tie. Moreover, the case might well have gone the other way with O'Connor still on the bench, since the court could have issued an opinion if there had still been five votes for Ceballos without her.

``It is fair to say in an era of excessive government secrecy, this makes government coverups easier by discouraging whistle-blowers," said Steven Shapiro, national legal director of the American Civil Liberties Union, which had supported Ceballos.

The case, Garcetti v. Ceballos, now returns to a federal appeals court in California.

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