Democrats & Liberals Archives

Free Speech and Originalism

The Supreme Court heard a case about the free speech of a whistleblower and decided that the free speech of government employees is limited: You may complain publicly but not internally up the chain of command. The decision was 5-4 with both newly-confirmed justices Alito and Roberts siding with the majority that included the original originalists Scalia and Thomas. (Kennedy wrote the majority decision.) I guess the originalists determined that the founders were against free speech within a government agency.

Deputy District Attorney Richard Ceballos wrote internal memos stating that a police officer may have lied to obtain a search warrant and therefore a pending criminal case should be dismissed. His advice was rejected and he was transferred to another job. When this happened, Ceballos sued, claiming that he was punished because he blew the whistle. The appeals court sided with Ceballos.

But not the Supreme Court. I don't know what happened, but Justice Kennedy sided with the originalists. He said:

"When a citizen enters government service, the citizen by necessity must accept certain limitations on his or her freedom."

Yes, but not on free speech. Not on whilstleblower free speech.

Aren't our governments too secretive already? Don't we need to learn more about the many government agencies, not less? Won't secrecy and protection from whistleblowers lead to more corruption? The decision will be welcomed by the ruthless and power hungry.

Except for Kennedy, all in favor of this quashing of free speech - Scalia, Thomas, Alito and Roberts - are originalists. They say they interpret the Constitution in a way the original founders intended it to be interpreted. They "know" that our founders would not be in favor of too much free speech. They are sure that the founders thought that there is enough public free speech without distorting the working of government bodies.

How do they "know"? Beats me. But do you think it is pure coincidence that when originalists prevail, the liberties of ordinary citizens are somewhat curtailed?

Think about it. Free speech and originalism do not often go together.

Posted by Paul Siegel at May 31, 2006 6:56 PM
Comment #153142

One more example of our country turning against us and apparently with the willingness of a large majority. When (or if) they wake up it may well be too late.

Posted by: Pete M at May 31, 2006 7:25 PM
Comment #153147

Just want to double-check your article, but did you mean to say that you can complain publicly but not within your organization, or vice versa?

Posted by: David S at May 31, 2006 7:33 PM
Comment #153161

“did you mean to say that you can complain publicly but not within your organization, or vice versa?”

I’m glad Paul jumped on this. I was just wondering how I could fit it in somewhere:

High Court Trims Whistleblower Rights

Notable quotes:

“The Supreme Court scaled back protections for government workers who blow the whistle on official misconduct Tuesday, a 5-4 decision in which new Justice Samuel Alito cast the deciding vote. In a victory for the Bush administration, justices said the 20 million public employees do not have free-speech protections for what they say as part of their jobs.”

“Critics predicted the impact would be sweeping, from silencing police officers who fear retribution for reporting department corruption, to subduing federal employees who want to reveal problems with government hurricane preparedness or terrorist-related security.”

IMO, it’s a “get out of jail free card” for corrupt or inefficient government employees and appointees. Just one more example of the GOOP whittling away at rights of the taxpayer and average citizen.


Posted by: KansasDem at May 31, 2006 8:20 PM
Comment #153162

ACLU has stricter rules about whistle blowers.

This particular case is not so simple. An employee has the right to free speech. But he has no right to undercut his employer while still taking home the paycheck.

Posted by: Jack at May 31, 2006 8:26 PM
Comment #153173


So, if you’re a city mayor and I’m a garbage collector and I happen to overhear you planning to commit an act that is either illegal or let’s say “discriminatory” I should expect to be fired for revealing the truth, is that right?

IMO that’s exactly what this means. I believe this decision serves only to protect the upper echalon from criticism. If you can’t see this only serves the elite then I must assume you are a part of the elitist circle that also denigrates the so called “Liberal Elite”. What a complete and total hypocracy that is.

I’m only amazed that the Republicans hold even one single position in government. The writing is, and has been, on the wall. We’re returning to pre-FDR era, not only reversing the New Deal, but introducing the Raw Deal.

The true “Compassionate Conservative message”:
Bend over everyone, if you didn’t bring vasoline you can bite on my riding crop while I stick it to you!


Posted by: KansasDem at May 31, 2006 8:56 PM
Comment #153183

What do you expect from Republicans?

Posted by: Aldous at May 31, 2006 9:29 PM
Comment #153186

DARK ROBE JUSTICE Apply four black hoods to these four blind justasses
and what do you get?”“}”_I can’t say what our future holds.Remember what we had when we had white robes an white hoods!Believe it or not,as long as our Senate & House have become corrupt or inept,One World Order will be applied without one of us voting for it.All Americans must apply critical thinking about what is happening to this great country and become part of the solution and not the victims of ignorance.

Posted by: David at May 31, 2006 9:37 PM
Comment #153189

Jack, you may want to take another look. This ruling does an end run around the Freedom of Information Act by insuring employees don’t document government errors, illegal or unconstitutional activities. It also, by the same mechanism will preempt Congressional oversight. Afterall, if you can’t print it in internal documents and sit under threat of imprisonment by the DOJ with the Sup. Ct.’s blessing when subpeonaed by Congress, the last vestiges of oversight and checks and balances on the Executive Branch have been removed.

And that was the game plan with packing the courts as in the fashion that has been done, with judges who would give unlimited power to the Executive in the name of security.

Posted by: David R. Remer at May 31, 2006 9:44 PM
Comment #153193

Having read the opinion and the dissent, I am frankly a bit confused.

As to the reason for termination or demotion I did not see where this memo or court testimony was given or even reasonably claimed as the cause.

The fact that his testimony in court did not result in the quashing of the warrant, makes me wonder about his judgement as an attorney. While I believe courts do regularly condone the false testimony of police, that wasn’t the issue before the Supreme court.

I would have to side with Souter’s logic here though on the free speech issue, while considering sometimes it is inappropiate for an employee to reveal internal disputes and should be subject to discipline, truthful testimony in court doesn’t make any sense to me as not subject to free speech rules. What issue the internal memo has is a mystery to this layman.

Posted by: gergle at May 31, 2006 9:57 PM
Comment #153199


The specifics of this one case matter much less than the ruling of the court. The SCOTUS ruling sets precedent that can and will be applied to both state and federal cases for years, if not decades. That’s exactly why the SCOTUS hears so few of the cases filed.


Posted by: KansasDem at May 31, 2006 10:17 PM
Comment #153200


I have been trying to understand the nuances of the ruling. All I know is what I read in the
Washington Post . As I read it, employees still have the right to report illegal dealings to the proper authorities. What they don’t have is unlimied rights to speak in their official capacity. It looks to me like a management issue. If I was so upset with something my boss did that I couldn’t work for him, I would expect to quit and then turn him in.


Posted by: Jack at May 31, 2006 10:20 PM
Comment #153206


You’re self-employed, aren’t you?

Posted by: Aldous at May 31, 2006 10:31 PM
Comment #153215

“You’re self-employed, aren’t you?

Posted by: Aldous at May 31, 2006 10:31 PM”

And I assume not facing homelessness if he misses one paycheck.


Posted by: KansasDem at May 31, 2006 11:07 PM
Comment #153217

Not being a lawyer, or playing one on TV, I just want to venture what might be a contrary opinion. My reading is I have the right to say what I think is right. I do not have the right to expect to be protected from the consequences of my actions.It’s called personal responsibility.

When the crunch comes, I have to make a decision: speak and possibly lose my job or keep quiet and try to salve my conscience with the idea that I am still employed. Which is more important?

Posted by: John Back at May 31, 2006 11:11 PM
Comment #153233

John Back,

If you believe your employer (or anyone else) violated the law and you fail to report it, then are you not “aiding and abetting”?

To me it seems we’re moving more and more towards a truly “caste” society. There will be the haves, the have nots, and of course the have mores who are above the law.


Posted by: KansasDem at June 1, 2006 12:04 AM
Comment #153239

The thing that troubles me in this case is the wording of the majority opinion. It is so broad that it will be tested many times before it can even begin to define when such speech will be permissible, without consequences.
Roberts recently stated that the court should define its opinions more narrowly, instead of the broad strokes that have been used in the past. Yet, in one of its first major cases since he donned the robe, their finding is considerably more broad than anything we’ve seen before. This will result in only those plaintiffs who can afford to go all the way through the appeals process to be heard by the high court. Yet it affects so many citizens’ first amendment rights.
The Supreme Court made a blunder here. The “strict constitutionalists” just raised the bar on “judicial activism”, by tossing out the first amendment for anyone who works for the government.
Next, we’ll find that we won’t be able to question any election results, so that the corrupt party in power will be able to continue stealing them to stay in.
I’m very concerned that we have already crossed the line and have become a fascist dictatorship while we slept. We may be forced to exercise that little bit of revolution that Jefferson was fond of extolling. Let’s hope not.

Posted by: Cole at June 1, 2006 12:20 AM
Comment #153262

I’m not so sure I completely agree with this, but limitations on those in public service is definitely a necessity. For example, people in the Armed Forces are not permitted to exercise their free speech rights while in uniform. By publically espousing political views in uniform, you are undermining the elected political leaders statements. This is a very smart regulation that all military people msut adhere to while in the services.

That being said, what I read here is that this DA caught wind of something illegal and tried to do something about it. He was punished for it instead, which is a crock, and this, to me, doesn’t even fall under “free speech”. This falls under the responsibility of the DA (or any other citizen) to report a crime when it has occured. In his capacity as the State’s legal representative, it was his duty to do so.

But, what were the political implications involved in this case? Forget the Supreme Court; we know it’s largely a kangaroo court for the Conservatives now. Was there an election at stake? Did this guy not follow the internal legal standards for such an occurance? Sounds to me liek there was more to this than a simple free speech case.

Just like Deep Throat, we know now that the man had serious personal differences with his superiors. Granted, he was right in bringing such horrible facts to light, but his reasons were not “free speech” related. They were purely political. This case was flawed in it’s inception, and I wonder why it was even brought to the Supreme Court in the first place…

Posted by: joshuacrime at June 1, 2006 3:11 AM
Comment #153271

I am so sick and tired of hearing all of this whining about peoples rights being violated. Do we not remember what happened on September 11, 2001. As far as whistleblowers having their rights violated, come on, give me a break. I took an oath to defend my country and gave up a lot of my rights that day. Do you hear me complaining? No. I just want to make my country safe for my son and everyone else that I love. There is a protocol to follow on government jobs similar to the military (and it should be in every job as far as I am concerned). There is a “chain of command” to utilize if you are experiencing any wrong doings. If it is at the top of that chain then consult your legal representative for which course of action to take. To “blow the whistle” to the press is the most cowardly and unnaceptable way to handle the situation. In some ways it can be extremely dangerous to some of us here fighting in the middle east depending on that persons job. We live in a wonderful country where we can have all of these rights that someone else fought to preserve. They should be considered priveleges, not rights. The bottom line is, with some government jobs you lose some of your rights. However, the beautiful thing about the U.S. is that nobody is forcing that job on anyone. If you don’t want to lose any of your rights then go work at McDonalds. Yes I would like to Super Size that.

Posted by: Illini Guy at June 1, 2006 5:05 AM
Comment #153272

———————joshuacrime———This was a test case needed quickly. First test was to see if these dark robes will do what was expected.Second was setup the largest major,Reversal of all the legal remedies granted to all Americans in the last eighty years.Beware if you see them all in a row with their black hoods on. We might get lucky an the Dam Dems.might grow some !!you know.

Posted by: David at June 1, 2006 5:11 AM
Comment #153273

——Illini Guy—-Most of you super sized right wing wigs seem to all play from your talking heads such as rush and all the other indicted or soon to be indicted corrupt people. I am surprised you are still playing that same old play book

Posted by: David at June 1, 2006 5:30 AM
Comment #153280


I have never voted republican in my life. As bad as it may sound my last two presidential votes were for Gore and Kerry, that is how behind the democrats that I am. The bottom line is that government employees give up certain rights when they accept their job. If they don’t wish to give up any rights, (of which most have done nothing to earn except that they were conceived here) then they can take a job elsewhere. I am over here sacrificing my life and having to be seperated from my family so that people like you can cry and whine about “their rights being violated”. If you know of a better country to live in, then move there.

Posted by: Illini Guy at June 1, 2006 6:49 AM
Comment #153281

Illini Guy, government is having a hard enough time getting qualified people into public service. Do not forget the military depends on a huge number of non-military public servants, and scraping the bottom of the barrel for public servants can and will cost GI lives.

I was in the Army. Maybe its changed, but, out of uniform and off duty I retained ALL of my 1st amendment rights, including criticizing my Commander in Chief which I did vociferously in private conversations. I was never asked by a reporter if I supported my President, but, I had a pat answer if I was ever asked. My answer was going to be, “I didn’t vote for him, thank Buddha; that was everyone else’s fault.”

Posted by: David R. Remer at June 1, 2006 6:50 AM
Comment #153282

David, You say that the govenment is having a hard enough time without scraping the bottom of the barrel. so a person that is extremely knowledgeable at efficient at their job but doesn’t follow rules and or leaks information isn’t considered bottom of the barrel. The Army hasn’t changed from when you were in but this isn’t about saying that you think the president or some other official is an idiot. This is about giving information to an outside source without addressing the problem in the manner that it should be addressed. So many people today want to take the easiest course of action instead of the proper course of action. And then cry for pity from everyone after they get their hand slapped for it. Once again the bottom line is that these people knew what they were getting into when they took their government job and no one held a gun to their head to take it. Condoning this is unbelievable. It is no different than what is going on with the immigration bill right now. “we know that you have been breaking the law, so as long as you have been doing it for a long time we will forgive you!” Give me a break David, you don’t let rules slide for a lack of qualified people.

Posted by: Illini Guy at June 1, 2006 7:09 AM
Comment #153289

As a retired federal employee (not a civil servant - do those in the military service consider themselves military servants??), I am appalled at the majority’s decision. This will have a chilling effect on opinions being expressed. The vast majority of the individuals who post on this blog have never experienced the “political pressure” exerted to conform, especially by political appointees. If you fear for your job when you express contrary opinions (and are reluctant to report problems), what are the consequences for this country?

Our rights as citizens continue to be trampled by the so-called conservatives. It’s time to vote them out. As my wise father remarked to me in 1994, the American public kicked the Republicans out in 1932 and it took sixty years for the public to get dumb enough to vote them back in again.

What rights will be restricted next? Freedom of expression? Assembly? Erosion starts gradually but can come in a torrent.

Posted by: litespeedrider at June 1, 2006 8:34 AM
Comment #153294

Illini Guy, your comments don’t appear to well informed. The S.C. ruled Tuesday that public workers who make allegations of misconduct in official reports and in work-related statements may be disciplined for their speech without violating First Amendment protections.

Don’t you get it? “Official reports and work related statements” means government limiting speech even when critical within the chain of command and responsibility. This is designed to eliminate documentation of wrong doing which could become available under the FOIA. This sets the stage for all manner of wrong doing and cover-up while intimidating everyone to keep it to themselves or be punished, even when laws are broken.

Posted by: David R. Remer at June 1, 2006 8:48 AM
Comment #153304

Aldous & Kansas

No, actually. Although my belief is that we all should be “self employed” and take responsiblity for our development on and off the job. I have built up sufficient human and financial capital that I don’t worry much about continued employement at any particular place, however.

All that said, I sometimes speak publically. I NEVER differ with my employer publicly when I am still representing them (because I am representing THEM). I am committed to the idea that should I ever have such a moral issue that I could not continue, I would resign first and criticize only later, when I could be representing MYSELF. I think it is imoral to continue to take someone’s money if you are not doing the work you agreed to do. That is why I have no trouble with this ruling, as I understand it in from reading the papers.

If something is important enough to take a moral stand over, it is important enough to take a hit. I don’t care for the pretend protests where someone says things and expects no consequences.

Posted by: Jack at June 1, 2006 9:25 AM
Comment #153360

As I read the decision I think we’ve gotten off issue.

The plaintiff sued for whistleblower protection.
This decision simply said he was not granted that protection.

It doesn’t appear to me there was a whistleblower issue here. There was an attorney who was a disruptive and poor prosecutorial staffer. The warrant issue was aired in court. No one’s speech was suppressed. i think he was just attempting to strike back at his employer. I’m not really sure this will have a chilling effect on real whislteblowers. It appears he cost them a lot of money appealing and he may have a future, since he was able to manuveur this to the Supreme Court.

As to the broad wording of the decision, I agree that was an error on the part of the court and was judicial activism…maybe.

Posted by: gergle at June 1, 2006 12:35 PM
Comment #153389

Heard some commentary on NPR, basically making the point that this was simply extending the existing ruling on private employment into government employment. Note that we’re not talking about “leaking” here, we’re talking about non-law-breaking criticism.
Essentially, as an employee of a private company, you can’t expect to use the first amendment as protection from getting fired for saying stuff. You can’t tell your boss he’s essentially got his head up his *ss, and then wrap yourself in the Bill of Rights to keep from getting terminated.
This ruling ostensibly extends that understanding into government employment. You CAN get fired for criticizing your employer, even if your employer is the government.
I’m usually a raging socialist flag-burning liberal, but I don’t have a problem with this understanding. Government employees will still go on record as disagreeing with policies/actions, and some of them will get fired for doing so. I think that’s a reasonable sacrifice to make for taking a stand. After all, what would a stand mean without a sacrifice? Maybe in some way this will lead to more talented courageous individuals taking stands, instead of quietly exiting govt employment as so many have in the past five years. The weasels still won’t criticize their bosses, but they were already weasels, right?
The real problem here is not this ruling but the continued politicization of all government function. When all govt agencies have become their double-think equivalent (EPA, HHS, Education, etc) how can we expect “good” to prevail?

Posted by: Confused at June 1, 2006 1:42 PM
Comment #153400

——Illini Guy——-Please note,I have a great deal of respect for the Military and every last sole serving there in. Being in military you must take orders in order to survive.With that said,I also believe our country was mislead by non military factions simply by saying in almost every statement about 9/11 the word Iraq. was injected. I will go no further on this line of disscusion,Please do not close your mind of critical thinking because of the military. DAVID

Posted by: David at June 1, 2006 2:00 PM
Comment #153631

Illini Guy,


Posted by: tomd at June 2, 2006 5:32 AM
Comment #153646

Paul asked:

Except for Kennedy, all in favor of this quashing of free speech - Scalia, Thomas, Alito and Roberts - are originalists. They say they interpret the Constitution in a way the original founders intended it to be interpreted. They “know” that our founders would not be in favor of too much free speech. They are sure that the founders thought that there is enough public free speech without distorting the working of government bodies.

How do they “know”?

My guess: the Supreme Court have finally found the US Fathers Founders’s time capsule. Burried behind some park near the Capitol. All possible future constitutional issues were already resolved by the founders and recorded in the time capsule.

What? Fairies?
No way!

It *have* to be that or… or, well, they’re just trying to hide their personal and very actual political opinion and agenda behind an hollywoodian ability to talk with the founders ghosts.

Posted by: Philippe Houdoin at June 2, 2006 8:23 AM
Comment #153654

Happy to report that the California lawmakers had the foresight to enact laws to protect whistle blowers.

Posted by: Carl at June 2, 2006 9:00 AM
Comment #153859

Hi Paul,

I am really just trying to get in touch with you as I lost your email address. Can you shoot me an email when you get a chance?? Thanks in advance.

Sam Hanna

Posted by: Sam Hanna at June 2, 2006 7:20 PM
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