Defining ‘whistle-blower’

SOME CIVIL LIBERTARIANS ARE denouncing a U.S. Supreme Court ruling Tuesday against a former Los Angeles prosecutor who says he was disciplined for speaking out against police misconduct. They may want to consider how they would feel if the same decision went against, say, a Bush administration official who was fired for saying that proponents of the president’s immigration policy suppressed evidence that illegal immigrants increase crime and disease.

The high court was divided along ideological lines on the case. It held that the Los Angeles County district attorney’s office did not violate the free-speech rights of Deputy Dist. Atty. Richard Ceballos by denying him a promotion because of his memo alleging that police officers lied to obtain a search warrant.

The majority opinion was written by Justice Anthony Kennedy, a moderate conservative who has been a defender of the 1st Amendment. Kennedy conceded that the 1st Amendment protects public employees when they speak as citizens, but he said no such protection attaches to speech “pursuant to their official duties.” He noted: “When a citizen enters government service, the citizen by necessity must accept certain limitations on his or her freedom.”

This was a close case for the court -- it was a 5-4 decision. But the dissenters couldn’t agree on a single rationale for protecting on-the-job communications like the Ceballos memo -- a sign that the majority was right in not announcing a new 1st Amendment protection for such speech.

Justice David H. Souter, in an opinion joined by justices John Paul Stevens and Ruth Bader Ginsburg, suggested a case-by-case approach to deciding whether “addressing official wrongdoing and threats to health and safety can outweigh the government’s stake in the efficient implementation of policy.” Justice Stephen Breyer declined to sign the Souter opinion because he said it “fails to give sufficient weight to the serious managerial and administrative concerns that the majority describes.” Stevens, though he signed the Souter opinion, wrote a separate dissent objecting to the notion “that there is a categorical difference between speaking as a citizen and speaking in the course of one’s employment.”

But is there? Any American has the right to spout off against the legalization of illegal immigrants. A member of an administration that takes a pro-legalization stance does not have the same right to second-guess that administration’s views in the name of “whistle-blowing.” Whatever one thinks of Ceballos’ actions, the court was right not to blur the distinction between citizen speech and employee speech.