Paging Ms. Plame

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Whether the First Amendment covers government employees is erupting as a concern – ostensibly, at least – after the Supreme Court ruled this week in Garcetti v. Ceballos that internal office communications are not necessarily constitutionally protected free speech. That ruling is being cast as a threat to government whistleblowers everywhere, but it is nothing of the kind. The ruling merely protects the ability of government managers to manage their employees effectively, which, if anything, could even make it easier for elected officials to corral bureaucrats who would try to obstruct an agenda that has won electoral support.

Richard Ceballos, the government employee at the heart of this case, was a deputy district attorney in Los Angeles County responsible for supervising other lawyers in the office. In February 2000, a defense lawyer raised questions about the accuracy of an affidavit that had been used as evidence to secure a search warrant in one of the cases under Mr. Ceballos’s supervision. After conducting a little investigation of his own, Mr. Ceballos agreed, and wrote a memo arguing that his colleagues should drop the case.

Those colleagues disagreed, particularly during what has been described as a contentious meeting. The prosecution continued. Mr. Ceballos appeared as a witness for the defense in a hearing challenging the warrant, but the judge also disagreed with Mr. Ceballos’s appraisal of the situation. The warrant stood. Meantime, Mr. Ceballos claims he was subjected to retaliation, although his employers contest that as well, arguing that a transfer to which he objects was necessitated by the office’s staffing situation.

Mr. Ceballos’s supporters have argued that he was a man of conscience who tried to blow the whistle on government wrongdoing and that he deserves First Amendment protection. He might well be a man of conscience, but Justice Kennedy’s majority opinion, joined by Chief Justice Roberts and Justices Alito, Scalia, and Thomas, suggests he might well also have been wrong. Consider the ills on which he was blowing a whistle: “The affidavit called a long driveway what Ceballos thought should have been referred to as a separate roadway.” Or this: “Ceballos also questioned the affidavit’s statement that tire tracks led from a stripped-down truck to the premises covered by the warrant. His doubts arose from his conclusion that the roadway’s composition in some places made it difficult or impossible to leave visible tire tracks.”

“Ceballos thought.” “His conclusion.” In other words, Mr. Ceballos had opinions and those opinions led to a disagreement with his employers. Those employers overruled him. Well, as most people have discovered at one time or another, there is no constitutional right to win an argument with your boss. There is also no constitutional protection if a boss looks at the way you have handled yourself in such a situation and begins to question your judgment. That’s all normal office life, and the Supreme Court has effectively ruled that the same rules apply in government offices.

The court’s reasoning hinged on a relatively narrow distinction between official job duties and private-citizen speech, and the justices ruled against Mr. Ceballos after deciding that the memo he wrote counted as work product. The implications, however, could be much broader and, despite bellyaching from the pro-whistleblower crowd, benefit the public more. For the ruling secures the right of government managers, especially elected officials and their appointees, to make otherwise unaccountable bureaucrats pull on their oars even if they disagree with the elected official. As Justice Kennedy writes, “Restricting speech that owes its existences to a public employee’s professional responsibilities … simply reflects the exercise of employer control over what the employer itself has commissioned or created.”

Valerie Plame, call your office. In too many bureaucracies, unelected staffers routinely subvert the will of the voters by obstructing elected officials with whom the bureaucrats disagree. If we’re lucky, this ruling will help the elected managers change that because the court has now clarified where free speech ends and insubordination begins. The ruling doesn’t silence whistleblowers so much as it silences employees with an over-developed sense of self-righteousness.


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