By MOLLIE ZIEGLER 

Federal employees' on-the-job speech is not protected by the First Amendment, according to the Supreme Court.

While civil liberty advocates fear the ruling issued May 30 will chill dissent and undermine whistleblowers, some constitutional and employment attorneys say such concerns are overblown. The ruling could improve government management with limited effect on federal employees, they say.

In Garcetti vs. Ceballos, the court ruled that a Los Angeles deputy district attorney, Richard Ceballos, was not protected by the First Amendment when he wrote a memo to his supervisors in which he expressed concerns about an affidavit used to obtain a search warrant. His boss later moved him to an office with a longer commute and demoted him.

 "When public employees make statements pursuant to their official duties, they are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline," Justice Anthony Kennedy said in his opinion on behalf of the five-justice majority.

The ruling affects the nation's 21 million federal, state and local government employees.

Some applaud the ruling, saying it will strengthen the hand of managers to do their jobs in the face of internal dissent. But many also say it points to the need for stronger protections against retaliation for employees who disagree with their supervisors.

"We need to have a strong whistleblower protection regime that permits public-sector employees to speak out when there are real issues of waste, fraud and abuse," said Max Stier, president of the Partnership for Public Service, a Washington group that promotes public-service careers. "That doesn't mean managers should be precluded from managing a work force that might otherwise have policy differences."

What it means

According to legal experts, federal managers and good government groups, the ruling is sure to affect federal offices across the country. Here is what many say the ruling will mean:

• More freedom for managers to evaluate performance without fear of lawsuits.

Managers need a significant degree of control over employees' words and actions, the court decreed.

Without control, "a government employer would have little chance to provide public services efficiently," Kennedy wrote.

Under the new ruling, a manager may find it easier to transfer someone, or give true but negative performance feedback without fear of retaliation, said Daniel Westman, labor attorney with Morrison Foerster in Northern Virginia.

"What this ruling does is allow managers to manage honestly," said Westman.

• Fewer protections for whistleblowers.

When federal employees want to report fraud or mismanagement - or seek protection from retaliation for such reports - they go to their supervisor, agency inspector general, the Office of Special Counsel or the Merit Systems Protection Board.

While few federal employees ever use the First Amendment to defend whistleblowing, Ceballos takes the option away entirely when the whistleblowing comes in the form of official work-related communication. The U.S. Court of Appeals for the Federal Circuit has previously ruled that such work-related communications made in the course of doing a job - such as an attorney asked to review an affidavit or a manager reporting misconduct by one of his employees - are also not protected by the Whistleblower Protection Act. So whistleblowers have even fewer legal options available because of this latest ruling if they are retaliated against, employee advocates say.

"In elevating concerns up the chain of command, employees are only descending into their own career inferno," said Peter Ruch, executive director of Public Employees for Environmental Responsibility.

Other legal analysts say the chilling effect of this ruling on whistleblowers is being overblown. Kermit Roosevelt, a law professor at the University of Pennsylvania, said the ruling does not mean employees get no protection for speech made on the job or even that whistleblowing speech is unprotected. An employee who reports fraud outside the course of his normal duties would not be affected by this ruling.

"It means only that when part of an employee's job is the production of certain speech, he or she can be dismissed if that speech is deemed unsatisfactory," said Roosevelt, citing the example of a speechwriter whose work is unsatisfactory.

• More pressure to strengthen whistleblower protection laws.

Leaving such disputes to be handled by whistleblower protection laws alone is a problem, Justice David Souter said in his dissent, because those laws are inconsistent and confusing.

"Individuals doing the same sorts of governmental jobs and saying the same sorts of things addressed to civic concerns will get different protection depending on the local, state or federal jurisdictions that happened to employ them," said Souter in his dissent.

The loss of the First Amendment recourse has prompted some whistleblower advocates to call for tougher protections, such as those in the pending Federal Employee Protection of Disclosures Act, S 494, sponsored by Sen. Daniel Akaka, D-Hawaii. The bill would permit federal employees to disclose classified information to Members of Congress or their staff who have the appropriate security clearances and appeal whistleblower cases to any U.S. Circuit Court of Appeals, instead of just the federal circuit.

"The potential damage caused by the decision restricting good-faith whistleblowing is unknown," Akaka said in response to the ruling.

• More incentive for disgruntled employees to go public with their dissent instead of airing it internally.

The court ruled that employee communication with the media or other outsiders could be protected by the First Amendment.

"It seems perverse to fashion a new rule that provides employees with an incentive to voice their concerns publicly before talking to their superiors," said Justice John Paul Stevens in a dissenting opinion.

Managers should encourage employees to be as forthcoming as they can be with their concerns, said Stier of the Partnership for Public Service.

"There are few better sources of information for how to improve an organization than front-line employees," he said.

Some justices agreed, including Kennedy who wrote the Ceballos ruling.

"Giving employees an internal forum for their speech will discourage them from concluding that the safest avenue of expression is to state their views in public," wrote Kennedy.

• More freedom for managers to squelch employee dissent.

Tom Devine, Government Accountability Project (GAP) legal director, said the decision will have dire consequences. "Government employees only have an on-the-job right to be ‘yes people,' parroting false information and enabling illegality," he said.

Another GAP attorney, Joann Royce, said some employees now will find themselves in a Catch-22. All federal employees are bound by ethics rules and an executive order to identify fraud, waste and abuse when they find it, she said.

"So federal employees are in a terrible quandary of having a duty to report problems but have no protection [against retaliation] if reporting problems is part of their job duties," Royce said.

What it doesn't mean

Legal experts, federal managers and good government groups say the ruling does not mean:

• A dramatic drop in whistleblower retaliation cases.

While many agree the ruling is a blow to the cause of whistleblowers, it will unlikely make much of a difference to them. That's because very few federal employee cases have been grounded on First Amendment arguments.

Attorneys agree that most federal whistleblowers seek protections or remedies for alleged retaliation under whistleblower statutes, not on constitutional grounds. William Bransford, general counsel for the Senior Executives Association, said he'd brought only two lawsuits based on the First Amendment in his long career and only one of those would have been precluded by the Supreme Court's ruling. Few federal employees seek recourse under the First Amendment because previous court rulings have discouraged that, attorneys said.

"There's a pretty good reason why federal employees don't seek protection under the First Amendment - the federal courts foreclosed that option," said Peter Eliasberg, a First Amendment attorney with the American Civil Liberties Union.

• Dissent is no longer allowed.

The court made clear that the Ceballos ruling in no way undermines existing whistleblower protections.

Exposing inefficiencies and misconduct are important and "reinforced by the powerful network of legislative enactments - such as whistleblower protection laws and labor codes," Kennedy wrote in his opinion for the majority.

In fact, since whistleblower protections are enacted by legislatures or government edict, and not constitutional, the case doesn't specifically change anything about those protections. However, the ruling takes away the option to seek recourse under the First Amendment if whistleblowers believe they were retaliated against.