Silencing the whistleblowers

If government had its way, much of what our public servants do would never be known by the public.

We wouldn’t know that Marines are suspected of killing innocent civilians in Iraq. We wouldn’t know that the Department of Veterans Affairs let confidential files on 26 million veterans get stolen.

We wouldn’t know that President Bush signed 750 orders saying he was secretly reserving the right not to abide by congressional legislation he publicly signed. We wouldn’t know that the National Security Agency engages in domestic surveillance.

We wouldn’t know that the true cost of the administration’s Medicare drug plan is hundreds of billions more than it was supposed to cost.

We wouldn’t know how environmental regulations are shaped by the industries affected or the shenanigans behind which prescription drugs get approved.

We wouldn’t know how former lobbyist Jack Abramoff influenced lawmakers or how Tom DeLay fiddled with redistricting to benefit his party. We wouldn’t know the United States runs secret prisons in Eastern Europe.

We wouldn’t know that the FBI ignored information about the 9/11 hijackers. We wouldn’t know that the government knew the levees supposed to protect New Orleans were inadequate.

Now a divided Supreme Court has issued a decision that potentially could make it much more difficult for Americans to know what is really going on in government.

The justices ruled 5-to-4 against a prosecutor in the Los Angeles District Attorney’s Office who is claiming he was subjected to retaliation for writing an internal memo that said a police affidavit for a search warrant contained lies.

The court overruled a lower federal appeals court, which supported the prosecutor. The nation’s high court said that public employees making statements in the course of their official duties “are not speaking as citizens for First Amendment purposes.”

The court said that there is nothing to prevent whistleblowers from taking their evidence of wrongdoing, such as fraud and abuse, to outside sources but that if they go to their bosses first, they can be punished, suspended, demoted and ostracized.

The court, led by Chief Justice John Roberts Jr., said there are laws that protect whistleblowers. But public-spirited whistleblowers who warned about threats to public health and safety and then lost their jobs, their incomes and their reputations do not agree. They say those laws are weak and poorly or not at all enforced. Justices David Souter, John Paul Stevens and Ruth Bader Ginsburg agree.

Justice Anthony Kennedy said the First Amendment does not protect “every statement a public employee makes in the course of doing his or her job.”

Stevens countered, “Public employees are still citizens while they are in the office. The notion that there is a categorical difference between speaking as a citizen and speaking in the course of one’s employment is quite wrong.”

The winning justices agreed that government is more effective when it speaks with one voice. “Without a significant degree of control over its employees’ words and actions, a government employer would have little chance to provide public services efficiently,” they said.

Souter strenuously disagreed. “Private and public interests in addressing official wrongdoing and threats to health and safety can outweigh the government’s stake in the efficient implementation of policy,” he wrote.

Groups that argue a democracy must always protect the rights of minorities and whistleblowers said the ruling is devastating.

Stephen Kohn, chairman of National Whistleblower Center, said, “The ruling is a victory for every crooked politician in the United States.” A person who burns a U.S. flag is protected from retaliation; a public employee who exposes waste, fraud and corruption can be fired, he said.

The American Civil Liberties Union said the ruling “seriously undermines the rights of whistleblowers who risk their careers to protect the public interest” and will encourage public employees to remain silent.

The Public Citizen Litigation Group, which says 100 whistleblowers file retaliation lawsuits a year, said public employees will be afraid to report problems ranging from hurricane preparedness to terrorist threats and as a result many such problems won’t be acknowledged and fixed.

The case was argued twice, possibly because former Justice Sandra Day O’Connor’s departure left a four-to-four tie. This is a major decision where her vote might have changed the outcome. This does not bode well.

(Scripps Howard columnist Ann McFeatters has covered the White House and national politics since 1986. E-mail amcfeatters(at)