BOB GARFIELD: U.S. courts have long recognized that public employees are, on occasion, witness to official misconduct. And so the courts have long accorded whistleblowers special protection. In other words, you can't be fired, demoted or otherwise penalized for exposing wrongdoing – except that a five to four decision this week by the Supreme Court complicates that assumption. The court decided that if your job is to expose wrongdoing, the First Amendment can't protect you from being punished for it. Chicago law professor Geoffrey Stone says that's exactly the situation that confronted Los Angeles County Deputy District Attorney Richard Ceballos.
GEOFFREY STONE: Well, he was concerned about a search warrant that had been obtained, and looked into the matter, decided that in his judgment the warrant had been obtained improperly, and reported this to his superior. His superior then held a meeting with the individuals who had obtained the warrant. They objected to Ceballos' evaluation and, according to Ceballos, he was later demoted and transferred as a consequence of his reporting what he believed to have been the wrongdoing of those who had obtained the search warrant.
BOB GARFIELD: Strictly speaking, this is not a whistleblower's case, is it? It's a First Amendment case that could affect whistleblowers and how they may be treated by their employers.
GEOFFREY STONE: Precisely. Whistleblower laws are enacted by the government to encourage employees to report wrongdoing, and nothing in this decision affects the application of those laws. What the court said is that the First Amendment, of its own effect, doesn't protect a government employee who, in the performance of his official responsibilities, reports wrongdoing to his superiors. This sounds very strange, because the court made clear that its holding did not affect the First Amendment rights of public employees to call a press conference and disclose publicly the same wrongdoing that in this case they reported, as they were supposed to, to their employer. And that just seems so counter-intuitive. I mean, how could you fire somebody for doing exactly what his job is?
BOB GARFIELD: Suppose I work for the Department of Transportation, for example, and I see that one of my colleagues has rigged some specs for a big highway building job, and I want to report it to the inspector general. Well, I'm protected under whistleblower statutes, but if someone in the inspector general's office decides that I'm right, and sends the complaint upstairs to alert his supervisors, that person is subject to dismissal for sort of just being a bearer of bad news.
GEOFFREY STONE: Correct. That's a great example.
BOB GARFIELD: Well, how weird is that, Geoff?
GEOFFREY STONE: Well, that is very weird, and that's exactly what people who have criticized the opinion have identified. When the employee is simply doing what he is paid to do by the government, then the court says he's not acting as a citizen. He's simply acting as a public employee doing his job, and for the doing of that job, he has no First Amendment rights. Ceballos is being punished for doing his job. But that's not a First Amendment right, is what the courts say. It's perverse, but it's not a First Amendment right.
BOB GARFIELD: So his job is to evaluate search warrants and whether the probable cause is actually there. He found that, in his opinion, the deputies had actually kind of trumped up the case for the search warrant. He so reported that to his supervisors, and he finds himself persona non grata in his own department. So the question is, if the finding by the court was really quite narrow, will it have a chilling effect on whistleblowers doing what whistleblowers do?
GEOFFREY STONE: There's an uncertainty that's created by the opinion, so I have no doubt that anyone who's thinking about being a whistleblower today, whether he's thinking about reporting to the government itself or whether he's thinking about reporting to the public, is going to have second thoughts about doing that as a result of this opinion.
BOB GARFIELD: Then, if I may ask, what will be the upshot of all of this?
GEOFFREY STONE: What worries me about the opinion, frankly, is that within it there are possible seeds having to do with the questions of whistleblowing in a much more fundamental sense, like the NSA surveillance. And even though that case does not involve, at all, a government employee reporting to a superior in the performance of his duties, the court here, the majority here clearly does not take a very sympathetic view of the value of what whistleblowers do.
BOB GARFIELD: What have we learned about Justice Alito?
GEOFFREY STONE: A sensible view of this case would have led, I believe, the court to have said that this is a situation for balancing; that you don't automatically pigeonhole an employee who is reporting wrongdoing in this context as someone who is doing his job and is not acting as a citizen and is not protected by the First Amendment. That strikes me as a very rigid and mechanical analysis. And it's not surprising to see it from Scalia and Thomas. It's a little surprising to see it from Kennedy. But I think it is revealing about Roberts and Alito. I mean, this is not an opinion that I think can be supported by common sense or by a concern for the larger values of the Constitution. I think that does show a lack of thoughtfulness on the part of the two new justices.
BOB GARFIELD: Okay, Geoffrey. Thank you so much, as always.
GEOFFREY STONE: My pleasure. Anytime.
BOB GARFIELD: Geoffrey Stone is professor of constitutional law at the University of Chicago.
BROOKE GLADSTONE: This is On the Media from NPR.