ACLU Denounces Supreme Court Ruling in Whistleblower Case

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Public Employees’ Right to Expose Misconduct Should be Preserved, ACLU Says

WASHINGTON — The American Civil Liberties Union criticized a ruling by the Supreme Court today that First Amendment protections do not apply to public employees who report government misconduct. The ACLU said the ruling seriously undermines the rights of whistleblowers who risk their careers to protect the public interest.

“Public employees should be encouraged to report misconduct,” said Peter Eliasberg, Manheim Family Attorney for First Amendment Rights at the ACLU of Southern California. “This opinion does the opposite and can only cause government employees who are weighing whether or not to expose wrongdoing to decide to remain silent for fear of losing their jobs.”

In October, the ACLU submitted a friend-of-the-court brief in the case, Garcetti v. Ceballos, on behalf of public employees’ First Amendment rights to expose corruption on the job. The Supreme Court ruled against Ceballos in a 5-4 vote Tuesday.

In his dissent, Justice David Souter wrote: “Open speech by a private citizen on a matter of public importance lies at the heart of expression subject to protection by the First Amendment.”

The ACLU said that the decision effectively bars public employees from reporting misconduct to their supervisors or within the chain of command, but does not keep them from reporting such incidents to the media.

“In an age of excessive government secrecy, the Supreme Court has made it easier to engage in a government cover-up by discouraging internal whistleblowing,” said Steven Shapiro, ACLU National Legal Director.

The case was originally filed in federal court in Los Angeles in March 2000 and centers around an attempt by Richard Ceballos, a Deputy District Attorney in the Los Angeles County District Attorney’s Office, to expose police misconduct. While working on a criminal case, Ceballos wrote a memo to his supervisors saying that he believed a deputy sheriff had falsified an affidavit used to obtain a search warrant in the case. His superiors decided to proceed with the prosecution. After Ceballos informed the defense counsel about his findings, he was subpoenaed to testify at a hearing to dismiss the case. The judge denied the motion and Ceballos was removed from the prosecution’s team.

Ceballos said his removal from the prosecution for reporting his concerns to his supervisors was the first of many acts of retaliation for his whistleblowing: He was denied a promotion, demoted to the rank of trial deputy and transferred from Pomona to the El Monte branch of the District Attorney’s office.

Justice Samuel Alito cast the tie-breaking vote after the case was argued twice, once before Justice Sandra Day O’Connor and again after Justice Alito joined the bench.

To read more about the case, go to www.aclu.org/scotus/2005/ 19652res2005092204473/ 19652res20050922.html