"The case had been closely watched for its affect on the at-work, free-speech rights of the nation's 21 million public employees. About 100 cases involving internal communications are brought each year in federal court." 21 MILLION. What's that, 20% of the workforce? -TD

From: "R.A. Hettinga" To: cypherpunks@jfet.org Subject: [Clips] Court rules no whistle-blower free-speech right Date: Tue, 30 May 2006 22:14:31 -0400

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Delivered-To: rah@shipwright.com Delivered-To: clips@philodox.com Date: Tue, 30 May 2006 22:13:14 -0400 To: Philodox Clips List From: "R.A. Hettinga" Subject: [Clips] Court rules no whistle-blower free-speech right Reply-To: rah@philodox.com Sender: clips-bounces@philodox.com

http://today.reuters.com/misc/PrinterFriendlyPopup.aspx?type=domesticNews&storyID=2006-05-30T210703Z_01_N30454508_RTRUKOC_0_US-COURT-WHISTLEBLOWERS.xml

Court rules no whistle-blower free-speech right

Tue May 30, 2006 5:07 PM ET

By James Vicini

WASHINGTON (Reuters) - A closely divided U.S. Supreme Court ruled on Tuesday that government whistle-blowers are not protected by free-speech rights when they face employer discipline for trying to expose possible misconduct at work.

By a 5-4 vote, the high court ruled against a California prosecutor who said he was demoted, denied a promotion and transferred for trying to expose a lie by a county sheriff's deputy in a search-warrant affidavit.

Adopting the position of the Los Angeles prosecutor's office and the U.S. Justice Department, the high court ruled that a public employee has no First Amendment right in speech expressed as part of performing job-required duties.

Writing for the court majority, Justice Anthony Kennedy said there is protection for whistle-blowers in federal and state laws and rules of conduct for government attorneys.

The case had been closely watched for its affect on the at-work, free-speech rights of the nation's 21 million public employees. About 100 cases involving internal communications are brought each year in federal court.

Steven Shapiro of the American Civil Liberties Union said, "In an age of excessive government secrecy, the Supreme Court has made it easier to engage in a government cover-up by discouraging internal whistle-blowing."

Other ACLU officials predicted the ruling will deter government employees from speaking out about wrongdoing for fear of losing their jobs.

Los Angeles County Deputy District Attorney Richard Ceballos had sued his employer for retaliating against him for exercising his free-speech rights when he reported suspected wrongdoing in a memo to senior officials in his department.

The justices overturned a ruling by a U.S. appeals court that Ceballos' action was protected by the First Amendment of the Constitution because he was speaking on an issue of public concern.

Kennedy said exposing government inefficiency and misconduct was a matter of considerable significance, and that various measures have been adopted to protect employees and provide checks on supervisors who would order unlawful or inappropriate actions.

"When public employees made statement pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline," he wrote.

JUDICIAL INTRUSION IN THE WORKPLACE?

Kennedy said a ruling for Ceballos would result in a "new, permanent and intrusive role" for the courts in overseeing communications between government workers and their superiors, replacing managerial discretion with judicial supervision.

He was joined by the court's conservatives -- Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel Alito.

The court's liberals, Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer, dissented.

Stevens wrote, "The notion that there is a categorical difference between speaking as a citizen and speaking in the course of one's employment is quite wrong." He called the majority ruling "misguided."

Souter wrote in a separate dissent that government employees who speak out about official wrongdoing should be eligible for First Amendment protection against reprisals.

-- ----------------- R. A. Hettinga The Internet Bearer Underwriting Corporation http://www.ibuc.com/ 44 Farquhar Street, Boston, MA 02131 USA "... however it may deserve respect for its usefulness and antiquity, [predicting the end of the world] has not been found agreeable to experience." -- Edward Gibbon, 'Decline and Fall of the Roman Empire' _______________________________________________ Clips mailing list Clips@philodox.com http://www.philodox.com/mailman/listinfo/clips

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-- ----------------- R. A. Hettinga The Internet Bearer Underwriting Corporation http://www.ibuc.com/ 44 Farquhar Street, Boston, MA 02131 USA "... however it may deserve respect for its usefulness and antiquity, [predicting the end of the world] has not been found agreeable to experience." -- Edward Gibbon, 'Decline and Fall of the Roman Empire'

Steve Schear wrote:

This may not be as much a blow to free speech as an opportunity to promote the civic virtue of psuedo-anonymous speech. Cypherpunks should focus on how whistle-blowers can use available technology to authenticate themselves to reporters and secretly correspond to help the press investigate and corroborate the story without having to come forward and expose themselves to presecution.

Agreed. What has evolved in recent years is a watering-down of whistleblower information by media eager to show it is responsible if not intimidated by administration threats and bluffs. Witness the NSA spying self-censorship by the NY Times and others while touting brave challenges to authority. Whistleblowers are being whipsawed by allurements to tell all with identity protected and then betrayed by editorial (advertising, investment) policy to not go too far in alarming the populace (spooking advertisers and investors). An underground (black) press is more trustworthy providing you can tell which are honeypots and fake pederasts and which are willing to take extreme measures rather than reveal sources. Willingness to go to jail is no longer a reliable test of journalistic reliability, it has become a promotional gimmick not to be believed. The fashion to "grant anonymity" by the media to whistleblowers presumes to grant too much authority to the media without it having demonstrated it is willing to risk as much as the whistleblower -- protect thine own ass or better: run your own medium.

At 11:02 AM -0700 5/31/06, John Young wrote:

protect thine own ass or better: run your own medium.

Now you're talkin'... Cheers, RAH -- ----------------- R. A. Hettinga The Internet Bearer Underwriting Corporation http://www.ibuc.com/ 44 Farquhar Street, Boston, MA 02131 USA "... however it may deserve respect for its usefulness and antiquity, [predicting the end of the world] has not been found agreeable to experience." -- Edward Gibbon, 'Decline and Fall of the Roman Empire'