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Slate's Jurisprudence: High Court Whistleblower Case

ALEX CHADWICK, host:

This is DAY TO DAY. I'm Alex Chadwick.

As controversy swirls around President Bush's latest Supreme Court nominee, the current court heard another important case today. It centered on the First Amendment rights of public employees. This case involves a Los Angeles deputy district attorney who criticized the prosecution of a criminal case. Then he says his bosses went after him. In court today was Dahlia Lithwick, legal analyst for the online magazine Slate and for DAY TO DAY, listening to the arguments.

Dahlia, tell us what was the constitutional question in this case and how was it that the--how did the earlier court of appeals rule?

DAHLIA LITHWICK reporting:

Well, Alex, the constitutional question is essentially this: Does the First Amendment protect your job-related speech if you're a public employee and you're speaking in your place of work? An easier way of saying it is: Is there a way to protect whistle-blowers on the job without opening a floodgate of complaints from just annoying insubordinate complainers who just don't like their bosses? The 9th Circuit ruled that they should, in fact, protect the whistle-blowers, that there is a First Amendment right.

CHADWICK: So now the plaintiff in this case is Richard Ceballos. And was he--he had lawyers arguing before the justices?

LITHWICK: Right. His argument essentially today was that it is crucial to protect whistle-blowers in public employment, and his attorney, in fact, expressly used the example of someone at FEMA who might know that there's a hurricane coming and that we're not prepared, who prepares a memo and is fired because her boss doesn't want to hear it. So essentially, they were saying, `You cannot create a regime in which people are shut down for complaining to their bosses about something that is, in fact, true.'

CHADWICK: And what about the response from the supervisors at the LA County district attorney's office?

LITHWICK: Well, they essentially say, `Look, a rule like this is completely crazy. This is going to turn every single act of insubordination, every memo, every statement made by any public employee into a huge First Amendment dispute that's going to have to be litigated in court.' They essentially said, `We've got to err on the side of letting employers decide how to discipline their people. We can't turn this into something that the court micromanages every single day.'

CHADWICK: Right. Well, I can understand that on the part of a boss. Wouldn't you hate to have sort of a situation where the employees could get up and say whatever they wanted to about policies you wanted done?

LITHWICK: The problem is: What do you do in that one case in a thousand, Alex, where, you know, the person really does have a legitimate complaint about a matter of public concern? And that's what the court was trying to balance today.

CHADWICK: And did you get some sense of how the court was going on this one?

LITHWICK: Hard to tell partly because Justice O'Connor is sitting on this case, but because she may be replaced when the decision comes down, her vote's not going to count. So you're always looking now at the possibility of a 4-4 split. But it seems that the court didn't much care for a sort of per se rule, an extreme rule on either side of this, which is why it became a little bit of what I would call Breyer-palooza today. Stephen Breyer is always the justice who's sort of looking for some principled middle way, and he talked a lot this morning about trying to find some way, some rule that would both protect whistle-blowers in matters of public importance but also not subject every single employer decisions to this sort of micromanagement by the courts. Justice Scalia said, `Sure, that would give you a pure and perfect First Amendment result and you'd spend the whole rest of your life in court.'

CHADWICK: Opinion and analysis from Dahlia Lithwick, spending much of her life in court for the online magazine Slate and for DAY TO DAY.

Dahlia, thank you.

LITHWICK: Always a pleasure, Alex. Transcript provided by NPR, Copyright NPR.