The U.S. Supreme Court dealt a strong blow to government accountability last week. In a 5-4 decision, the court determined that public employees, such as people working for the state and federal governments, are not protected by the First Amendment when they talk about public matters while fulfilling their jobs (“Court reduces speech rights,” ODE, June 2).
In other words, if a public employee is acting within the line of duty or as a representative of his or her employer, that employee’s right to freedom of speech is outweighed by the employer’s ability to operate.
In the legal case that led to this ruling, for example, Los Angeles deputy district attorney Richard Ceballos alleged that he was denied a promotion after approaching his bosses about what he considered inappropriate conduct by sheriff’s deputies. After Ceballos filed an employee grievance, Ceballos’s lawyer eventually argued that the man’s free speech rights had been violated because Ceballos’ employers had punished him due to his willingness to speak out about the problematic search warrant.
According to the ruling, Ceballos’ constitutional protection of speech does not extend to a workplace situation where his speech would result in negative ramifications for an employer.
Limiting freedom of speech for public employees may persuade individuals to forgo reporting serious incidents of misconduct. More disturbingly, the court’s decision may also apply to employees of state colleges such as professors and administrators; it thus chips away at rights within the classroom.
As National Whistleblower Center attorney David Colapinto said, “You’re going to have professors saying things in class, and they can be fired for its content.”
University and other public employees should not have their right to freedom of speech limited simply because of the often-sensitive nature of a public or governmental workplace. Whistleblowers are often the key to revelations of gross workplace misconduct, such as Sherron Watkins in the Enron scandal. Watkins was bold in her willingness to release memos and warnings about corrupt Enron accounting process. When such corruption occurs in a governmental agency, potential whistleblowers may now be much more hesitant to come forward for fear of being fired.
Regarding the University, Colapinto is aptly concerned for educators’ freedom to openly discuss values or facts that could be deemed harmful to the overall state of their employers. For instance, a school administrator could certainly argue that opining on Westmoreland in class or encouraging students to protest the sale of the apartment complex is harmful to the financial state of the University, and that a professor therefore has no freedom of speech protection to make such comments.
Justice David H. Souter specifically pointed out the possible negative effects of the ruling on public universities. But Justice Anthony M. Kennedy, who authored the court’s opinion, said the court “need not” rule on whether Tuesday’s ruling applies to public colleges. By not specifically excluding public schools, Kennedy has left the door open for future litigation that limits speech at institutions of higher education.
Although such a situation would be unlikely to occur at the University, thanks to the Supreme Court’s recent ruling, the possibility that University professors will lose their constitutional freedom certainly exists.