Ruling removes defense for whistle-blowers

The decision focused on government workers' role rather than what they say.
KNIGHT RIDDER NEWSPAPERS
WASHINGTON -- The Supreme Court made life a bit tougher for government whistle-blowers Tuesday, saying the First Amendment doesn't protect public employees who disclose waste and fraud as part of their jobs.
By a 5-4 margin, the justices said that the government's interest in effectively managing operations outweighs the interests that protect employee speech, even in cases where employees may be reporting inefficiencies or wrongdoing.
The ruling leaves public employees -- about 20 million at the local, state and federal levels -- significantly more prone to retaliation from their employers if they speak out in ways that displease their bosses.
In a departure from previous court rulings, Tuesday's decision focused on the role that employees play when whistle-blowing, rather than the content of their speech. Writing for the court, Justice Anthony Kennedy said employees who speak out while acting in an official capacity essentially forfeit the First Amendment rights they have as citizens, no matter what they say.
Kennedy's opinion was joined by Chief Justice John G. Roberts Jr., and justices Antonin Scalia, Clarence Thomas and Samuel Alito Jr.
Dissenting opinion
In a dissent, Justice David Souter said the court had unnecessarily abandoned its traditional balancing test, which measured the public value of the employee's speech against a government interest in maintaining a disciplined workplace.
Souter agreed that the government's interests may be compelling, but he rejected a categorical rule that denies protection to employees who speak out in an official capacity.
He noted previous cases in which the court "realized that a public employee can wear a citizen's hat when speaking on subjects closely tied to the employee's own job."
Justices John Paul Stevens, Ruth Bader Ginsburg and Stephen Breyer also dissented.
Kennedy wrote that the decision didn't prevent public employees from participating in discussions about matters of public concern; it simply "does not invest them with a right to perform their jobs however they see fit."
The case was argued twice at the high court -- once with Justice Sandra Day O'Connor there and a second time with Alito, who took her place. The justices apparently couldn't reach a resolution before O'Connor left, and the remaining eight justices were split 4-4. Alito, therefore, cast the decisive vote.
Some advocates say the ruling puts public employees who seek to report wrongdoing in an untenable position.