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The Libertarian

Vin Suprynowicz

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Does the freedom of speech mean no one can be punished for anything they say?

Most would agree the Bill of Rights grants no immunity for statements like “Stick ’em up and back away from that cash drawer.” But what about a government employee who “blows the whistle” on what he perceives as malfeasance? Should his supervisors be able to punish him for saying things embarrassing to the agency ... or does the Bill of Rights grant “whistleblowers” some immunity?

In a close 5-4 decision, the U.S. Supreme Court Tuesday reviewed a lower court ruling that Los Angeles County prosecutor Richard Ceballos was constitutionally protected when he wrote a memo questioning whether a county sheriff’s deputy had lied in a search warrant affidavit. Ceballos had filed a lawsuit claiming he was demoted and denied a promotion for trying to expose the lie.

But the justices overturned that lower court decision Tuesday, denying Mr. Ceballos relief from the courts.

The ruling was seen as the clearest sign yet of the Supreme Court’s political shift with the departure of Justice Sandra Day O’Connor and the arrival of new Bush appointee Samuel Alito.

Many are characterizing that shift as away from “liberalism” and toward “conservatism.” But where they stand on an expanding role for government based on a claimed intention to right social wrongs may not be a very useful scale for measuring the shift in question. Rather, the court appears to grow more willing to defer to the convenience and prerogatives of those who run government agencies -- more “statist.”

And if someone’s goal is to grow the government into an air-tight tyranny, does it really matter if he or she does it in the name of abortion rights and gay unions, or protecting the flag and the sanctity of marriage?

A year ago, Justice O’Connor authored a 5-4 decision that encouraged whistleblowers to report sex discrimination in schools. The current case was re-argued in March, after Justice Alito replaced her on the bench. And Justice Alito Tuesday joined the other statists in the slim majority.

Exposing government misconduct is important, Justice Anthony M. Kennedy wrote for that majority. “We reject, however, the notion that the First Amendment shields from discipline the expressions employees make pursuant to their professional duties.”

Justice Kennedy said if Mr. Ceballos’ superiors thought the memo was inflammatory, they had the authority to punish him.

“Official communications have official consequences,” Justice Kennedy wrote. “Supervisors must ensure that their employees’ official communications ... promote the employer’s mission.”

Parrot the party line, or get busted back to the proverbial foot patrol? So the “mission” of the Los Angeles County prosecutor’s office is to present a uniform and reassuring face to the public -- not to investigate possible police misconduct?

Of course a thorough probe into charges of official malfeasance will tend to be “inflammatory” -- that is, to inflame public outrage and demands for reform. That’s bad? Tuesday’s ruling in Garcetti v. Ceballos means 20 million government employees no longer have free-speech protections for anything they say in connection with their jobs, critics properly object. They predict the ruling could have a sweeping impact, silencing police officers who fear retribution for reporting department corruption -- even FBI agents previously willing to blow the whistle about inaction in the face of evidence of terrorist plans.

“I think government employees will be more inclined to keep quiet,” Mr. Ceballos responded in a telephone interview.

“It’s a very frightening signal of dark times ahead,” added Tom Devine, legal director for the Government Accountability Project.

Some point out Justice David H. Souter’s lengthy dissent might have been the majority opinion, were Justice O’Connor still on the court. “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,” he wrote.

To say the least.

In fact, the best argument in favor of the decision is that “whistleblower” status has been misused to stymie the normal function of government agencies, often with costly effect. Right here in Southern Nevada, it was Assemblyman Wendell Williams, the political sugar daddy of provisional community college employee Topazia “Briget” Jones, who was able to demand she be granted “whistleblower” status there, stymieing the process of cutting her loose from what amounted to a patronage job.

Supporters of the ruling argue it will protect the ability of government agencies to hand out required negative performance reviews or demotions, without fear of frivolous lawsuits filed by disgruntled workers pretending to be legitimate whistleblowers.

Possibly. But at what cost to the public’s right to know?

And where in the Constitution is there any call or authorization for the court to “balance” the paramount status of the Bill of Rights against the supposed “need” of government employers to have “a significant degree of control over their employees’ words and actions”?

Nowhere. The statists just made it up.