The Ceballos Whistleblower Case: What Does It Really Mean?
Friday June 2, 2006
Categories: Free Speech | Crimes and Punishments
The civil liberties blogosphere is buzzing over Garcetti v. Ceballos, a recent Supreme Court case in which a 5-4 majority--led by moderate Justice Anthony Kennedy--clarified existing Court precedents dealing with the First Amendment's protection of government employees. This is not a major, landmark case; the Court's decision breaks little new ground, essentially affirming what it has already said in prior rulings. What makes the case remarkable is the way that it has been filtered by the blogosphere and some traditional media outlets.
Here's a rundown of the case: A county prosecutor had expressed concerns about possible mishandling of evidence by sheriff's deputies, who had arrested a suspect he was in the process of prosecuting. After bringing these concerns to the attention of his employer and coworkers, he was instructed to prosecute the case as he otherwise would have, without bringing his concerns into play. He defied orders and included information about the alleged mishandling of evidence in an official case deposition, compromising the case and creating incredible hostility between the local sheriff's office and the district attorney's office. He was disciplined for disobeying his superiors.
He filed a lawsuit, charging that his case deposition was a form of protected speech and that his superiors were prohibited from punishing him for its content on First Amendment grounds. In his ruling, Justice Kennedy rejected the plaintiff's claim--arguing that, although most forms of workplace speech are protected under the First Amendment, official government communications, such as prosecutorial case depositions, are not protected speech and are therefore not necessarily covered under the First Amendment.
All well and good. Whether you agree with the case or not--and Breyer, Ginsburg, Souter, and Stevens didn't--anyone familiar with the details knows that it is a First Amendment case with no broader implications for legislative whistleblower protection laws, and does not apply to whistleblowers who report wrongdoing through ordinary channels, or even release it to the press. It deals only with whether government officials can enforce the chain of command with regard to what is included in official government documents written under their supervision.
You'd never know that from reading this article from my local newspaper, which attacks the ruling for "[adding] a climate of secrecy and fear shielding government acts that has marked this administration." And the Corruption Chronicles blog states that the prosecutor merely "provided evidence of wrongdoing," without specifying what was the central point of the case: That he did so as part of a document he was writing on behalf of his superiors. And DailyKos leaves the facts behind altogether, claiming that the case means "that government whistleblowers have no Constitutional free speech right" (which is blatantly false) and that the case "is a green light for government officials to engage in corruption and retaliation, smug in the knowledge that they cannot be held accountable." As anyone who has actually read the ruling knows, it neither strikes down whistleblower protection laws nor restricts government employees' free speech protection in ordinary contexts. It deals only with the degree to which the production of government-produced documents should be regarded as a form of protected speech.
There is no evidence of any kind that the prosecutor was disciplined for reporting his concerns to his superiors, or for discussing it with other coworkers, or even for bringing it up in a speech at a local Bar Association conference. The issue under discussion by the Supreme Court, and the only issue under discussion by the Supreme Court, was his decision to violate orders by reporting his concerns in an official deposition in a case that he was prosecuting--and whether that deposition was protected under the First Amendment itself, independent of any possible relevant whistleblower protection statutes (many of which would have been rendered obsolete had the Court's decision gone the other way). It's entirely possible that the Court did not decide this case correctly--but the 5-4 ruling speaks to the very narrow, and highly technical, issues involved.
The fact that the government needs to be held accountable for its lies doesn't change the fact that we--journalists, bloggers, and other members of the so-called Fourth Estate--also have a responsibility to tell the truth, and to conduct basic research about a case before reacting to it. We also have this responsibility as civil liberties advocates. The facts should never be a casualty of our activism efforts--because if information is power, then a misinformed movement is a weak movement.
See also:
The civil liberties blogosphere is buzzing over Garcetti v. Ceballos, a recent Supreme Court case in which a 5-4 majority--led by moderate Justice Anthony Kennedy--clarified existing Court precedents dealing with the First Amendment's protection of government employees. This is not a major, landmark case; the Court's decision breaks little new ground, essentially affirming what it has already said in prior rulings. What makes the case remarkable is the way that it has been filtered by the blogosphere and some traditional media outlets.
Here's a rundown of the case: A county prosecutor had expressed concerns about possible mishandling of evidence by sheriff's deputies, who had arrested a suspect he was in the process of prosecuting. After bringing these concerns to the attention of his employer and coworkers, he was instructed to prosecute the case as he otherwise would have, without bringing his concerns into play. He defied orders and included information about the alleged mishandling of evidence in an official case deposition, compromising the case and creating incredible hostility between the local sheriff's office and the district attorney's office. He was disciplined for disobeying his superiors.
He filed a lawsuit, charging that his case deposition was a form of protected speech and that his superiors were prohibited from punishing him for its content on First Amendment grounds. In his ruling, Justice Kennedy rejected the plaintiff's claim--arguing that, although most forms of workplace speech are protected under the First Amendment, official government communications, such as prosecutorial case depositions, are not protected speech and are therefore not necessarily covered under the First Amendment.
All well and good. Whether you agree with the case or not--and Breyer, Ginsburg, Souter, and Stevens didn't--anyone familiar with the details knows that it is a First Amendment case with no broader implications for legislative whistleblower protection laws, and does not apply to whistleblowers who report wrongdoing through ordinary channels, or even release it to the press. It deals only with whether government officials can enforce the chain of command with regard to what is included in official government documents written under their supervision.
You'd never know that from reading this article from my local newspaper, which attacks the ruling for "[adding] a climate of secrecy and fear shielding government acts that has marked this administration." And the Corruption Chronicles blog states that the prosecutor merely "provided evidence of wrongdoing," without specifying what was the central point of the case: That he did so as part of a document he was writing on behalf of his superiors. And DailyKos leaves the facts behind altogether, claiming that the case means "that government whistleblowers have no Constitutional free speech right" (which is blatantly false) and that the case "is a green light for government officials to engage in corruption and retaliation, smug in the knowledge that they cannot be held accountable." As anyone who has actually read the ruling knows, it neither strikes down whistleblower protection laws nor restricts government employees' free speech protection in ordinary contexts. It deals only with the degree to which the production of government-produced documents should be regarded as a form of protected speech.
There is no evidence of any kind that the prosecutor was disciplined for reporting his concerns to his superiors, or for discussing it with other coworkers, or even for bringing it up in a speech at a local Bar Association conference. The issue under discussion by the Supreme Court, and the only issue under discussion by the Supreme Court, was his decision to violate orders by reporting his concerns in an official deposition in a case that he was prosecuting--and whether that deposition was protected under the First Amendment itself, independent of any possible relevant whistleblower protection statutes (many of which would have been rendered obsolete had the Court's decision gone the other way). It's entirely possible that the Court did not decide this case correctly--but the 5-4 ruling speaks to the very narrow, and highly technical, issues involved.
The fact that the government needs to be held accountable for its lies doesn't change the fact that we--journalists, bloggers, and other members of the so-called Fourth Estate--also have a responsibility to tell the truth, and to conduct basic research about a case before reacting to it. We also have this responsibility as civil liberties advocates. The facts should never be a casualty of our activism efforts--because if information is power, then a misinformed movement is a weak movement.
See also:
Comments
The Cabelos case is not as benign as you claim and I think you are (unintentionally) misrepresenting the ruling. Quite simply, Cabelos was punished for exposing corruption in the Los Angeles District Attorney’s Office in a criminal case. This ruling will make it even more difficult for prosecutors to voice any dissenting opinions, even if the defendant is being railroaded.
If I spray-painted graffiti on the wall of the State Capitol Building exposing corruption, and was arrested on a public order charge, then yes, I would technically be under arrest for exposing corruption.
In the same way, Ceballos was disciplined for exposing wrongdoing in a case deposition–when the real offense was that he went against his superior’s orders vis-a-vis legal strategy by including that information in the deposition. He could have reported it higher up the chain. (He may have.) He could have reported it to other coworkers. (He did.) He could have spoken about it from the podium at legal functions. (He did.) He could have taken additional measures to make sure that the judge and opposing counsel were made aware of the possible wrongdoing. But when he refused to follow his office’s legal strategy and defiantly went off on his own, he opened himself up to punishment.
Was he right to do what he did? Maybe. Was the Court wrong to rule against him? Maybe. I’m entirely willing to entertain both possibilities. But that doesn’t make this a case about general whistleblower protection, or about anything broader but First Amendment protection of documents produced for the government under supervision.
Cheers,
TH
I haven’t read the specific court decision, but I’d agree with you that it is important to be factually correct when writing about technical court decisions and various other legal matters. Too much of our political rhetoric these days, on both the right on the left, is factually sloppy at best.
You statement about the facts of the case is actually wrong. What you leave out is that Mr. Ceballos was under a legal and ethical duty to make his concerns and the results of his own investigation available to the defense attorney. So he either was going to break the law and stay quiet or give the information and be fired. That’s the dilemma, and it changes the nature of the issue. This is not a case about messes within the chain of command, it’s whether the 1st Amendment protects disclosures made up the chain of command, which are subtly diferent.
I am well versed in the facts of the case. Mr. Ceballos’ legal and ethical duties, independent of the First Amendment, were not the concern of this ruling. The issue was whether a government document–namely, the case deposition–would be a First Amendment-protected venue through which he could safely disregard orders from his superiors, on behalf of whom he was writing the deposition.
I am not suggesting that Ceballos is not or should not have been protected by whistleblower statutes, but it is not the job of the Supreme Court to make sure that justice is done by enforcing laws that haven’t yet been written. It’s to address the specific constitutional questions brought before it.
Cheers,
TH
In respectful disagreement with the idea this decision is relatively minor–either to public servant whistleblowers or the innocents who know too few of them–I admit to reading only “about” the decision. It effectually closes one of the last hopes of any wrongly prosecuted innocent.
Opposite of New York’s Knapp Commission, the US Supremes have enshrined the orders and preferences of superiors–right or possibly purposefully unjust–by wrapping them in or under the Constitution.
Might superiors have put a lid on an embarrassingly honest prosecutor to duck heat themselves as much as to require him to uphold a presumptively just chain of command?
When the Knapp Commission held superiors responsible for misdeeds of lower-ranking officers, it suggested scrutinizing both the actions and motives of higher-ups when justice “under color of law” was at stake.
That the L.A. prosecutor kept the issue alive and risked and, some would say, suffered adverse consequences, might mean liberty interests for an accused were upheld by a bold proxy acting in an important best sense of free expression.
Those old enough to remember the radio show “Mr. District Attorney” recall how he promised at the start of each show to not only take out the guilty but also to protect the innocent. Now the rare prosecutor who may consider protecting the innocent, or avoiding going to trial with tainted evidence, has received the last word from the US Supreme Court: the show is over.
Maybe Former US Attorney General Ed Meese said it all to the ABA in summer 1985: We wouldn’t call them suspects if they weren’t guilty. That statement and belief in it lowered the bar for presumption of innocence everywhere.
We feign belief in “innocent until proved guilty,” rather easily upended now that the Supremes rule the whole truth can be sat on per order of superiors and the messenger (in or out of office) can be silenced and ultimately ignored “all the way to the Supreme Court.”
You really should do some research yourself before attempting to write about a SC decision. The word deposition does not appear anywhere in the opinion. The plaintiff wrote a disposition memorandum recommending that the charges be dropped (a deposition and a disposition memorandum are two completely different things). The real question in this case, which will likely never be publicly answered (because the supremes refuse to allow Mr. Ceballos’ Constitutional claim), is why he was retaliated against for simply recommended that the charges be dropped. Why would his supervisors at the DA’s office want to continue to prosecute someone whose Constitutional rights had been violated? If the search warrant was obtained based on lies made by the police, then the warrant was likely valid and the search of the suspect’s property was a violation of his constitutional rights. From the facts available, it seems that Ceballos was punished for simply pointing out a fact that should have been extremely relevant to his supervisors in deciding whether or not to continue the prosecution. Either way, it should not be possible for Ceballos to be punished for simply telling his superiors what he thought and standing up for what he though was right.
just proofread my comment. should have said “warrant was likely invalid?
I was just curious as to whether you’ve kept up on the post-Garcetti district and appellate court rulings? Because you were utterly and totally wrong – Garcetti has proven to be vast, killing almost every first amendment employment retaliation case that it touches. If you disbelieve me, feel free to KeyCite it, or Shepardize, or whatever it is you do. Garcetti is bad news; poorly reasoned, broadly read, and against all logic on public policy grounds.