Attorney Barry Turner, a Lecturer of Law at Leeds Law School in the UK, describes the Supreme Court 's decision absurd. "Transparency is essential in any democracy and is a bulwark against corruption, which, " he points out, "requires secrecy to survive."
"Any society or administration that facilitates secret deals and hides from the truth can only court corruption," he warns. "Gagging whistleblowers," he contends, "can only assist the corrupt, the criminal and the fraudster."
In a nutshell, the question before the Supreme Court was: Does a prosecutor who speaks on a matter of public concern by reporting police misconduct lose his First Amendment protection against retaliation solely because he communicated the message while performing his job?
The plaintiff in the case was Richard Ceballos, a Deputy District Attorney in the Los Angeles County District Attorney 's Office who informed his supervisors that he believed a Deputy Sheriff had falsified an affidavit to obtain a search warrant in a criminal case.
After Ceballos relayed his findings, he followed up with a written memorandum recommending the dismissal of the case. At a hearing on a motion to challenge the search warrant, Ceballos was subpoenaed by the defense and testified about his findings regarding the affidavit.
According to Ceballos, he filed the lawsuit after he was demoted and denied a promotion, in direct retaliation for the statements he made in the memo and during his testimony. He maintains he is entitled to protection for speech on a matter of public concern regardless of whether the communication was made in the course of performing his job duties.
In response to a motion for summary judgment by the government defendants, the District Court disagreed and said the memo was not protected speech because Ceballos wrote it as part of his employment duties.
Ceballos appealed the decision and the Ninth Circuit Court of Appeals reversed the lower court's ruling and held that the memo 's allegations were protected.
The government then appealed to the Supreme Court and the case was argued twice, once when Sandra Day O'Connor was still on the bench, and again after she retired and Samuel Alito took her place.
The newest Justice Alito, cast the tie-breaking vote in ruling not only against Ceballos, but against the public's right to know what their government is up to according to critics.
Attorney Tom Devine says, "this decision is outrageous. "
"Canceling the constitution for "duty speech, " he warns, "means that government employees only have an on-the-job right to be "yes people, " parroting false information and enabling illegality. "
Mr Devine, is the legal director at Government Accountability Project (GAP), a non-profit, non-partisan whistleblower support organization. He has represented FDA whistleblower, Dr David Graham, and has assisted some 4,000 whistleblowers formally or informally since coming to GAP in 1979.
When public employees are muzzled, it follows that the public will be deprived of information on important public issues, such as police misconduct in this case. Society relies on public employees like Ceballos to communicate information about abuse of authority and other matters of great importance, because they are the members of the community who are most likely to have informed opinions on the operations of their public employers.
According to court filings, Ceballos had served as a Deputy District Attorney since 1989. In the latter part of the 1990s he was assigned to the DA 's Office as a trial deputy and less than a year later, he was promoted to calendar deputy, a position giving him supervisory authority over junior prosecutors and responsibility for prosecutions brought in the court to which he was assigned.