Supreme Court backs official misconduct, 5-4

Reproducing the Bush v. Gore lineup, the Supreme Court’s Red Team has decided that a public official who complains about misconduct within his agency isn’t protected from retaliation by his superiors.

Can a civil servant who complains to his superiors about misconduct within his agency be punished for it?

Justices Roberts, Scalia, Thomas, Alito, and Kennedy say yes.

Justices Stephens, Souter, Breyer, and Ginsburg say no.

Note that the case involved a prosecutor who made a fuss about what he thought was a defective search warrant. But it applies to any internal whistleblower. The Court has in effect instructed public employees that they must remain silent at work about whatever misbehavior their colleagues and superiors choose to engage in, or risk retaliation.

And it was precisely because the prosecutor kept his complaint within channels, rather than going to the press, that the Court found that he was speaking as an employee rather than as a citizen, and therefore was not protected by the Free Speech Clause. Because the plaintiff had only been doing his job his actions didn’t constitute Constitutionally protected citizen speech. Justice Kennedy helpfully points out that employers who want to encourage employees to speak up through channels can create workplace policies that do so. (Sometimes I think the Court ought to replace the inscription “Equal Justice Under Law” over its portico with “Just Visiting This Planet.”)

Note also that, allowing for substitutions on the Red team, this is precisely the lineup in Bush v. Gore. (Though Marty Lederman at SCOTUSblog, who’s as appalled by the decision as I am, thinks that Justice O’Connor might have come down on the side of the angels.)

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com

11 thoughts on “Supreme Court backs official misconduct, 5-4”

  1. I think the hyperlink misrepresents the decision.
    The question is, "Is this speech protected by the First Amendment?"–which official speech by government employees is not, usually. The courts and LA County seemed to argue that LA's action was probably illegal, but not unconstitutional.

  2. Suppose I'm a clerk to Supreme Court Justice X and discover that he or she has taken a bribe in a case. If I go to the Chief Justice I risk getting fired and my career ruined. So I'll go to TPM Muckraker instead, where I stand a better chance. Right?
    And by the way, does SCOTUS have the internal whistleblower policy recommended by Justice Kennedy?

  3. PS: There's a blogad on RBC today for "Colonial shutters". A fine motto for Bush's Supreme Court.

  4. Very strange. I originally thought that maybe the Court was simply saying that there were other legal avenues the plaintiff might have pursued, rather than treating it as a First Amendment case, or that maybe the plaintiff couldn't prove he'd suffered damages (I don't know if they considered that–I'm not a lawyer), but no: the central issue was the "speaking as an employee" versus "speaking as a citizen" issue.
    Well, the Bush administration has always given lip service to the goal of having a smaller government. I didn't realize that their means would include driving out the most conscientious government employees.

  5. Forcing public employees to speak publicly, bypassing their bosses, is an odd choice to make. What were they thinking? Were they thinking? Next step: encouraging whistleblowers. Perhaps some nice lottery winner will set up a richly endowed public employee whistleblower foundation, a MacArthur for excellence in whistleblowing.

  6. While we may regret public employees not receiving protections while blowing the whistle, that's not enough to conclude that such speech is constitutionally protected (viz, to the point of including protections against retaliation).

  7. Now, now, liberal, there you go supposing that something other than the outcome matters in constitutional interpretation.

  8. The decision certainly is not in the spirit "of the people by the people and for the people."

  9. Liberal: You say, "that's not enough to conclude that such speech is constitutionally protected (viz, to the point of including protections against retaliation)." To say that speech is constitutionally protected MEANS that the speaker is protected from retaliation. It also means that the speech is protected from prior restraint, but attempts at prior restraint are rare. As for your main point, it is trivial. Of course the fact that we regret not having something is not enough to give us a constitutional right to it.

  10. How well put–"Visiting the Planet" the remarkable cluelessness of this right wing cabal never ceases to amaze. Maybe Al Gore should take them on a tour of the planet they are wrecking and hope they get a clue.

  11. Henry, my point is clearly that I don't see much support for the claim "whistleblowing is constitutionally protected speech."

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