Wednesday, May 31, 2006

WHISTLEBLOWER DECISION -- The analysis has been a little muddled, suggesting the decision lacks some clarity, consider:

Charles Lane: "The Supreme Court yesterday bolstered the government's power to discipline public employees who make charges of official misconduct, ruling that the First Amendment does not protect those who blow the whistle in the course of their official duties."

NYT editorial: "It suggested the attorney would have had more protection if he had embarrassed his office publicly than by working quietly through the system. But the bigger problem is that the ruling rolls back government workers' rights to speak out against possibly illegal actions."

Linda Greenhouse: "But Daniel P. Westman, a lawyer with the firm of Morrison & Foerster who advises employers on whistle-blower issues, said in an interview that the decision did little more than affirm the status quo by "rejecting a very overreaching opinion" by a federal appeals court. He said "smart employers" would now be sure to encourage the use of internal complaint mechanisms to deter employees from taking their complaints public and thus enjoying the prospect of greater constitutional protection."

Marty Lederman: "So, it appears that if one's duties are to expose wrongdoing in the workplace, such exposure is entitled to no constitutional protection, but that if an employee whose duties do not involve such whistleblowing makes the exact same complaint, then Pickering/Connick analysis still applies. A somewhat odd result, at least on first glance. And odder still: Under today's opinion, if Mr. Ceballos had written a newspaper article complaining about the wrongdoing in question, rather than taking the matter to his supervisor, he would at least be entitled to whatever constitutiional protection Pickering/Connick offers."