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Court turns down the volume on whistle-blowers

By Bill Mears
CNN

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Justice Samuel Alito cast the deciding vote.

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Supreme Court
Los Angeles (California)

WASHINGTON (CNN) -- A divided Supreme Court ruled Tuesday that government workers who blow the whistle on alleged illegal conduct do not deserve First Amendment protection that would automatically shield them from discipline from their bosses.

The decision creates a higher legal hurdle for the 20 million public service employees nationwide who seek to expose official wrongdoing in the face of possible retaliation.

It was only the second 5-4 opinion issued by the high court since its newest member, Justice Samuel Alito, joined the bench in January. He cast the deciding vote in a case that was argued twice this term, the first time back in October.

At issue is what constitutional guarantees civil servants deserve in speech done as a routine part of their job.

Writing for the majority, Justice Anthony Kennedy noted, "Exposing governmental inefficiency and misconduct is a matter of considerable significance."

But he rejected the idea "that the First Amendment shields from discipline the expressions employees make pursuant to their professional duties."

Kennedy said a "powerful network" of whistle-blower protection and labor laws exist to benefit workers who fear punishment for speaking out. He was supported by Chief Justice John Roberts and his fellow conservatives, Justice Antonin Scalia, Clarence Thomas, and Alito.

The nine-member bench seemed to struggle balancing the need for preserving discretion in many aspects of the workplace with the need to ensure those who expose wrongdoing are not unfairly punished. The majority concluded not every aspect of government work deserves free-speech protection.

The case involves Richard Ceballos, a deputy Los Angeles County prosecutor who investigated allegations that a sheriff's deputy lied on an affidavit to obtain a search warrant in a criminal case.

After looking into a formal complaint by a defense attorney, Ceballos found evidence of misconduct and recommended to his bosses the criminal case be dismissed for that reason. He was asked by his supervisors to tone down the wording of his memo, but the revised letter still contained the conclusion that "grossly inaccurate" statements were made in the deputy's affidavit.

Despite that, prosecutors moved ahead with the case, which involved theft at an auto parts store. Ceballos said he was obliged to tell the defense of his conclusions. He testified about his investigation at the trial, which went in favor of the defendant.

Ceballos claimed his bosses later retaliated by demoting him, making threats, creating a "hostile" work environment, and denying a promotion. He sued and a federal appeals court eventually agreed with him. But the high court reversed the decision.

In dissent, Justice David Souter said civil servants, in some cases, deserve greater free speech protection.

"It stands to reason that a citizen may well place a very high value on the right to speak on the public issues he decides to make the subject of his work day after day," wrote Souter. "These citizen servants are the ones whose civic interest rises highest when they speak pursuant to their duties, and are exactly the ones government employers most want to attract."

Also in dissent were Justices John Paul Stevens, Ruth Bader Ginsburg and Stephen Breyer.

The appeal was originally heard in October, when now-retired Justice Sandra Day O'Connor was still a member of the court. She stepped down before the opinion was completed, and under court rules her vote did not count. That left a 4-4 tie, and the justices decided to rehear the case.

Alito was an especially active questioner during the rearguments in March.

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