Bush Stacked Supreme Court Begins Screwing Citizenry

[fishbob]

http://www.statesman.com/news/content/news/stories/nation/05/31scotus.html

A divided U.S. Supreme Court ruled Tuesday that government employees are not protected by the right to free speech when they expose wrongdoing while on the job.

The 5-4 decision, in which new Justice Samuel Alito cast the deciding vote, affects an estimated 21 million workers across the country in local, state and federal government jobs. Those workers will no longer be protected under the First Amendment when they spotlight misconduct as part of performing their official duties. My bold.

The new list of usual suspectsKennedy was joined in the majority by Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas and Alito.

Supporters said it will protect governments from disgruntled workers pretending to be legitimate whistle-blowers and prevent routine internal workplace disputes from becoming federal court cases. Seems like a pretty severe restraint against legitimate whistle-blowers in order to protect the government from a few disgruntled workers pretending to be legitimate whistle-blowers.

The new world's record lamest and least judicial American judicial excuse I have ever heard:
Government employers, like private ones, need a significant degree of control over what their employees say, Kennedy wrote: "Without it, there would be little chance for the efficient provision of public services."

We are talking about exposure of government corruption, malfeasance, and incompetence. Not complaints about the who gets the bigger stapler.

[MaxHardcore]

I learned to love Big Brother.


Misconduct is cool anyway, why would you want goverment powers if you couldn't misuse them?

[Zep]

Hello? Is that the New York Times? This is Deep Throat - do I have a story for you!

[Megalodon]

I wonder when someone will drop by to explain how good this is for the american society, and how it's all Clinton's fault anyway...

[Zep]

I blame Lisa.

[a_unique_person]

The case was brought by a Los Angeles County deputy district attorney, Richard Ceballos, who alleged that his supervisors retaliated against him after he wrote a memo saying that he thought a deputy sheriff had falsified an affidavit used to obtain a search warrant in a criminal case. His superiors proceeded with the prosecution despite his protests, and Ceballos was subpoenaed to testify on behalf of the defendant.
In a lawsuit claiming his First Amendment rights had been violated, Ceballos said he had been demoted, denied a promotion and transferred for trying to make an injustice known.
The high court overturned a ruling by the U.S. Court of Appeals for the 9th Circuit, which found that Ceballos' actions were protected by the First Amendment because he was speaking on an issue of public concern.



A worker exposes what he believes to be illegal actions, and is punished for doing so.

[Arkan_Wolfshade]

Though, after a cursory examination of the article, I disagree with the ruling as a whole, there are some other items that should be highlighted:

"When public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes," Justice Anthony Kennedy wrote on behalf of the majority of the justices. "The Constitution does not insulate their communications from employer discipline."
...
Tuesday's opinion left open the possibility that an employee such as Ceballos might be shielded by the First Amendment if he acted as a "citizen" rather than in an official capacity and took his complaints to a newspaper or to a state legislator.
...
[unrelated to bulk of article] •The justices rejected an appeal from an atheist father over Boy Scout recruiting at his son's public school. John Scalise had argued that the group discriminates against nonreligious boys and parents by denying them membership if they don't take religious oaths.

[Magyar]

Well all this like corps not having to meet SEC regulations for reporting accounting info is GOOD for America. This way we can just all put on our rose colored glasses and merrily sing along to Brittney Spears tunes believing in our fearless leader.

[Beerina]

Supporters said it will protect governments from disgruntled workers pretending to be legitimate whistle-blowers and prevent routine internal workplace disputes from becoming federal court cases.

Because, God knows, this is much more important than exposing government corruption.

Two worlds:

One with exposed government corruption, and with the downside of disgruntled employees filing lawsuits

One without exposed government corruption and fewer disgruntled employees filing lawsuits


Take your pick.

[Luke T.]

How does one decide when it is okay for an employee to publicly release sensitive organizational information or not?

According to the article quoted above, the "wronged party" in this case wrote a memo saying he thought a deputy had falsified an affidavit. I see nothing about him having evidence the deputy had falsified the affidavit.

So why is he a hero? What makes him a victim? How do we know he isn't some kind of prick making a false accusation?

Court transcripts will probably be helpful.

[Luke T.]

"When public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes," Justice Anthony Kennedy wrote on behalf of the majority of the justices. "The Constitution does not insulate their communications from employer discipline."

Read that in the context of a government employee who makes a false accusation.

ETA: And this:

Supporters said it will protect governments from disgruntled workers pretending to be legitimate whistle-blowers and prevent routine internal workplace disputes from becoming federal court cases.

[Ziggurat]

"When public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes," Justice Anthony Kennedy wrote on behalf of the majority of the justices. "The Constitution does not insulate their communications from employer discipline."
...
Tuesday's opinion left open the possibility that an employee such as Ceballos might be shielded by the First Amendment if he acted as a "citizen" rather than in an official capacity and took his complaints to a newspaper or to a state legislator.

That seems rather an important qualification, and it seems to me that precedent already pretty much makes this the case.

Aside from freedom of speech, the first amendment also guarantees freedom to petition the government for redress of grievances. That basically means citizens can lobby. But government employees are generally forbidden from lobbying, or political campaigning, or a whole host of other activities while on the job, or even using their job as part of their efforts in that regard. And if you do, your employer can sanction you. This is nothing new, it's not different from the private sector, and it's not an infringement of free speech or any other right. It's simply a matter of what employers are entitled to demand from their employees while on the job.

[a_unique_person]

Read that in the context of a government employee who makes a false accusation.

ETA: And this:

So the real issue is to decide if a whistle blower is sincere or not. The judgement does nothing to address that.

[CFLarsen]

Hello? Is that the New York Times? This is Deep Throat - do I have a story for you!
"STOP CALLING US, Ms. LEWINSKY!"

[peptoabysmal]

This ruling does not affect First Amendment rights. What it says is that office memos are not free speech. Duh. If Ceballos had gone to the press, he could not be fired as a result of his action because he was acting as a private citizen and exercising his free speech rights. Nothing has changed in that regard.

The 9th circuit is well known for making over-the-top liberal decisions. Their ruling would have put the courts into an intrusive role of monitoring inter-office communications.

GARCETTI et al. v. CEBALLOS (http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&navby=case&vol=000&invol=04-473)

Consider that Ceballos may have been wrong in his assessment (the memo... part of his job duties, not "free speech") and his employer should have every right to reprimand him for not doing his job correctly. What does it tell you that the trial court rejected Ceballos' challenge?

[Manny]

Jesus Christ. Look guys, they print the slip opinions right on the damn Supreme Court Website (http://www.supremecourtus.gov/opinions/05pdf/04-473.pdf).


ETA: Damn you peptoabysmal, damn you all to hell!

[peptoabysmal]

Jesus Christ. Look guys, they print the slip opinions right on the damn Supreme Court Website (http://www.supremecourtus.gov/opinions/05pdf/04-473.pdf).


ETA: Damn you peptoabysmal, damn you all to hell!

LOL.

That's the one I wanted to get, but I live out in the boonies and am stuck with painfully slow dial-up. Heck, we just got touch tone phones the other day! No more painful fingers from rotary dialing. A PDF with more than two pages is out of my reach.

Can you post some relevant excerpts?

[fishbob]

This ruling does not affect First Amendment rights. What it says is that office memos are not free speech. Duh. If Ceballos had gone to the press, he could not be fired as a result of his action because he was acting as a private citizen and exercising his free speech rights. Nothing has changed in that regard.

The 9th circuit is well known for making over-the-top liberal decisions. Their ruling would have put the courts into an intrusive role of monitoring inter-office communications.

GARCETTI et al. v. CEBALLOS (http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&navby=case&vol=000&invol=04-473)

Consider that Ceballos may have been wrong in his assessment (the memo... part of his job duties, not "free speech") and his employer should have every right to reprimand him for not doing his job correctly. What does it tell you that the trial court rejected Ceballos' challenge?

Note Steven's comment: Justice John Paul Stevens wrote in dissent that it "seems perverse" to protect whistle-blowers who go public while punishing those who take their concerns to their managers.

[peptoabysmal]

Note Steven's comment:
Note also that "seems perverse" is a personal opinion rather than a legal interpretation of the Constitution. You could say (and might as well) that it "seems perverse" to have a Republican President (and it carries about the same legal weight).

ETA: That's what this whole case hinges on. What's-his-name did not go public with his "whistleblowing", this was an office memo; part of his job and subject to review by his supervisor. Steven is flat out wrong.

[jj]

BOHICA!

Told you so.

[Luke T.]

BOHICA!

Told you so.

Say you worked in the audio industry and a subordinate sent you a memo that double-blind tests are useless as the basis for an affadavit on whether or not the latest audio cable improved performance. Would you not discipline him severely, jj-style? Maybe even fire his dumb ass? What if he then turned around and brought you to court for violating his right to free speech?

[jj]

Say you worked in the audio industry and a subordinate sent you a memo that double-blind tests are useless as the basis for an affadavit on whether or not the latest audio cable improved performance. Would you not discipline him severely, jj-style? Maybe even fire his dumb ass? What if he then turned around and brought you to court for violating his right to free speech?


Luke, it's very simple, the twirp DOES get to speak out (to use your example). He DOES get to explain his position.

But, of course, you're leaving something out here, in your example, the twirp is a moron about psychometrics, but he's not violating a law.

Suppose he was complaining, for instance, that the vendor falsified the data in order to prove that the cable didn't matter (n.b. cable may or may not matter, that's the issue), and in fact the vendor was so sure they didn't even run the test.

NOW he's justified in speaking out even if his conclusion is wrong.

[fishbob]

Consider that Ceballos may have been wrong in his assessment (the memo... part of his job duties, not "free speech") and his employer should have every right to reprimand him for not doing his job correctly. What does it tell you that the trial court rejected Ceballos' challenge?

Note also that "seems perverse" is a personal opinion rather than a legal interpretation of the Constitution. You could say (and might as well) that it "seems perverse" to have a Republican President (and it carries about the same legal weight).

So why bother with dissenting opinions anyway - they are only personal.

Note that that 'seems perverse' is actually part of Steven's job duties - according to your reasoning.

You don't get it both ways.

[Art Vandelay]

Why do people keep blaming the Court for policy decisions? THE JUDICIAL BRANCH DOES NOT SET POLICY. Why is that so hard for people to understand? If you have a problem with a policy, you should gripe about either the legislative or executive branch, depending on where that policy originated. Criticizing the judicial branch for failing to strike down a decision made by someone else is rather silly.

[Luke T.]

Luke, it's very simple, the twirp DOES get to speak out (to use your example). He DOES get to explain his position.

But, of course, you're leaving something out here, in your example, the twirp is a moron about psychometrics, but he's not violating a law.

Suppose he was complaining, for instance, that the vendor falsified the data in order to prove that the cable didn't matter (n.b. cable may or may not matter, that's the issue), and in fact the vendor was so sure they didn't even run the test.

NOW he's justified in speaking out even if his conclusion is wrong.

You would be justified in firing a worker who didn't know what he was talking about or who made a false accusation against someone else. Sure, he's free to say what he wants, that doesn't mean he is immune to the consequences of his speech, and that you have to keep him on.

If that is what this case is all about, then it isn't about "screwing the citizenry" or "BOHICA". It about keeping jackasses from clogging up the courts for suffering the consequences of being jackasses.

[fishbob]

Luke, as I posted back at the top, we are talking about exposure of government corruption, malfeasance, and incompetence. Not complaints about the who gets the bigger stapler. I don't see anything about immunity from the consequences of jackass actions in the decision or in the dissent.

[Luke T.]

Luke, as I posted back at the top, we are talking about exposure of government corruption, malfeasance, and incompetence. Not complaints about the who gets the bigger stapler. I don't see anything about immunity from the consequences of jackass actions in the decision or in the dissent.

Read your own link to the decision.

Ceballos was notified by the defense attorney in the case that information in the affadavit which was used to obtain a warrant was inaccurate. Ceballos looked into it and he agreed with the opposition (the defense attorney).

Ceballos spoke on the telephone to the warrant affiant, a deputy sheriff from the Los Angeles County Sheriff's Department, but he did not receive a satisfactory explanation for the perceived inaccuracies.

"Government corruption, malfeasance, and incompetence"? Or was his perception wrong?

He felt a "long driveway" should have been "a separate roadway".

And:
Ceballos also questioned the affidavit's statement that tire tracks led from a stripped-down truck to the premises covered by the warrant. His doubts arose from his conclusion that the roadway's composition in some places made it difficult or impossible to leave visible tire tracks.

Were their tracks on the roadway/driveway? Were there any turnoffs from this driveway/roadway? What can one conclude if there are tire tracks on any portion of this driveway/roadway? If there are no turnoffs, isn't there only one place the truck could have gone? So are his perceived innaccuracies really enough to throw out the warrant?

He expressed his concerns up the chain of command. A meeting was held. His chain of command felt he was wrong and he was overruled.

Then Ceballos was called as a witness for the defense on a motion to dismiss the warrant, and repeated his concerns with the affadavit.

Then:
Despite Ceballos' concerns, Sundstedt decided to proceed with the prosecution, pending disposition of the defense motion to traverse. The trial court held a hearing on the motion. Ceballos was called by the defense and recounted his observations about the affidavit, but the trial court rejected the challenge to the warrant.

So even the court rejected his objections to the affadavit.

So maybe his perceptions were wrong? Or it could be a case of government corruption, malfeasance, and incompetence involving the entire chain of command and a judge? Your call.

It was at this point that Ceballos was "disciplined" or "retalitiated against", depending on your bias.

Me, I don't know enough to make a decision either way. Certainly not enough to say the citizenry has just been BOHICA'd.

[Luke T.]

What I am saying is, fishbob, what if it was Ceballos who was being incompetent? He should not be protected from suffering the consequences of his incompetence, the same as you saying his chain of command shouldn't be.

[Luke T.]

I don't see anything about immunity from the consequences of jackass actions in the decision or in the dissent.

Ceballos was seeking redress under 42 U. S. C. §1983 (http://caselaw.lp.findlaw.com/scripts/ts_search.pl?title=42&sec=1983)

In other words, immunity from the consequences of his actions.

[fishbob]

What I am saying is, fishbob, what if it was Ceballos who was being incompetent? He should not be protected from suffering the consequences of his incompetence, the same as you saying his chain of command shouldn't be.
I don't see it.
The whole case boils down to whether he was competent or not. If he was indeed punished, but correct in his judgement, he should be able to seek redress.
If he was in fact not punished but was correct in his judgement, the government should be able to make this case that he was not punished.
If he was punished or not, but was incompetent, the Section 1983 - Civil action for deprivation of rights applies and is dependent on the facts. Why do we need a judgement limiting these rights? The reasoning presented by the majority seems weak.

[jj]

You would be justified in firing a worker who didn't know what he was talking about or who made a false accusation against someone else.


Incompetence is always grounds, yes?


Sure, he's free to say what he wants, that doesn't mean he is immune to the consequences of his speech, and that you have to keep him on.


Quite. Free speech comes with the responsibility for it, unless you're a journalist. :( to that last


If that is what this case is all about, then it isn't about "screwing the citizenry" or "BOHICA". It about keeping jackasses from clogging up the courts for suffering the consequences of being jackasses.

Well, I see a problem with this judgement, in that it is going to squelch whistleblowing.

There is a difference between somebody being wrong and somebody exposing an illegal or unethical action.