Wednesday, May 31, 2006

Controlling Legal Authority III

On the continuing problem of controlling legal authority....

The Supreme Court today issued a 5-4 decision narrowing the First Amendment rights of public employees. It held that speech made “pursuant to” an employee’s duties is not entitled to First Amendment protection. Employees do have other statutory and contractual protections, however.

Two excerpts from LA Times story:

WASHINGTON — The Supreme Court on Tuesday restricted the free-speech rights of the nation's 21 million public employees, ruling that the 1st Amendment does not protect them from being punished for complaining to their managers about possible wrongdoing.
Although government employees have the same rights as other citizens to speak out on controversies of the day, they do not have the right to speak freely inside their offices on matters related to "their official duties," the high court said in a 5-4 decision.
When a citizen enters government service, the citizen by necessity must accept certain limitations on his or her freedom," said Justice Anthony M. Kennedy, rejecting a lawsuit brought by a Los Angeles County prosecutor.
Lawyers for government whistle-blowers denounced the ruling as a major setback. They said it could threaten public health and safety. Public sector hospital workers who know of dangers may be discouraged from revealing them, while police and public employees may be dissuaded from exposing corruption, they said...

...Still, Tuesday's majority opinion left open the possibility that an employee might be shielded by the 1st Amendment if he or she acted as a "citizen," rather than in an official capacity, and took complaints to a newspaper or to a state legislator.
Justice John Paul Stevens said in dissent that it "seems perverse" to protect whistle-blowers who go public, while punishing those who take their concerns to their managers.
"We think this is a bad decision, but it may not be a catastrophe," said Peter Eliasberg, an ACLU lawyer in Los Angeles. "It basically says, if you go to the L.A. Times, you might get some protection. But if you report it in the office and up the chain of command, you don't have any protection under the 1st Amendment."