Whistleblowers and Secrecy?

By Tom Head Friday, June 2, 2006 5:15 a.m. CDT

I'm going to be blogging about this issue on my About.com site, but I'm mentioning it here because I'm annoyed at the way our local newspaper has covered it.

The headline reads "Whistleblowers: Court is siding with secrecy." The case, which is never mentioned by name in the article, is Garcetti v. Ceballos. And almost every single paragraph of the Clarion-Ledger editorial on the case includes at least one error.

Some background: The case involves a prosecutor who was punished by his supervisor for including allegations of police misconduct in his case deposition after being ordered not to do so. He is claiming protection not under whistleblower statutes, but under a novel First Amendment protection--charging that, in other words, the government's own writing (because that's what the deposition is) is his own personal protected speech. The case deals only with his deposition; the other venues he used to air his complaint, such as conversations he had with his superiors and with other employees, letters he wrote, and a speech he gave at a local Bar Association conference, still receive First Amendment protection. And in dealing with his deposition it addresses only with the First Amendment, not whistleblower statutes.

You'd never know any of this from reading the Ledger article. Among the various problems with it:

The ruling affirms precedent, so the editorial's claim that the case "[makes] it harder for government employees to claim they were retaliated against" is questionable.
The editorial claims that "when the public interest demands it, particularly when a wrongful government act could be prevented, protection should be afforded." It is. The case deals only with the question of whether legal strategy as reflected in the deposition, which the petitioner was writing on behalf of the government and in consultation with his superiors, should receive special First Amendment free speech protection independent of whistleblower statutes. If we say yes, we make it extremely difficult for district attorneys to discipline prosecutors under any circumstances pertaining to incompetent legal strategy, because the prosecutor could always claim that the ineffective deposition or memo receives First Amendment guarantees that trump prosecutorial needs. The private sector equivalent to this case would be a requirement that newspaper editors keep all of their reporters and columnists on staff, regardless of the quality of their work, or face a First Amendment lawsuit.
The editorial claims that "new Justice Samuel Alito [tilted] the [5-4] majority." This is probably not true; the ruling was written by Justice Anthony Kennedy, a moderate with an excellent record on First Amendment issues, and Justice O'Connor's history suggests that she would have probably taken exactly the same course as Alito if she were still on the bench.
The editorial claims that "the ruling runs counter to public policies, including the False Claims Act..." This simply isn't true. The ruling has absolutely nothing to do with the False Claims Act or any other legal protections ordinarily afforded to whistleblowers; it deals with the narrow issue of whether writing done on behalf of the government, which is generally collaborative writing, is specifically protected by the First Amendment. Not whether it is protected by other statutes, but whether it is protected by the First Amendment.
The editorial asks: "Where is the public interest in this ruling?" Maybe if the author of the editorial had actually read the ruling, s/he'd know. Justice Kennedy's ruling is extremely clear and extremely narrow in focus.

I am not generally sympathetic to rulings in which Breyer, Ginsburg, Souter and Stevens dissent, but in this case I think the conservative Court probably did the right thing. And even if I didn't, I wouldn't describe the ruling as anything but a First Amendment case with absolutely no bearing on whistleblower protection laws.

This kind of lazy reporting really bugs me--particularly when the author of the editorial doesn't even cite the case so that readers can hunt down more information for themselves. Where's the public interest in that?

Previous Comments

ID: 106155
Comment: The CL only wants the public to know what they tell them. An Informed public is a dangerous public.
Author: Ironghost
Date: 2006-06-02T14:51:16-06:00

ID: 106156
Comment: Good one, Tom. Very important. Thank you.
Author: DonnaLadd
Date: 2006-06-02T15:56:38-06:00

ID: 106157
Comment: Glad to do it, Donna. :o) Thanks for providing me with this platform! Here's my Civil Liberties blog entry on the case. Note the way DailyKos completely rockets off into deep space and leaves planet Earth behind, as it has a tendency to do. I can't stand that blog. I think I'd rather listen to Rush Limbaugh than read DailyKos--at least ol' Rush has a sense of humor about himself. I think anger is a very good thing when it's well-placed and constructive, and a very bad thing when it's irrational and spiteful. In this case, the position of the C-L seems to be "*shrug* Well, things suck. Here's more proof. No need to learn more details or actually try to do anything about it; the world's going straight to hell anyway." That's a whiny, cowardly attitude to have even when it's based on the facts--and a downright stupid attitude to have when it isn't! There are ways of regulating the Court when they do something obviously wrong--namely, by constitutional amendment. The Senate will be voting on a really bad one next week. So if the C-L editorial-writer really believed what s/he said, the thing to do would be to provide more details and contacts so we could organize a movement to overrule the Court. And if the C-L editorial writer didn't really believe what s/he said (which I see as the more likely possibility), why bother saying it to begin with? I swear. The problem is not the conservative media or the liberal media, I am growing increasingly convinced; it is the negative media, the media that tells us to throw up our hands, sit on our butts, and be good consumers and nothing else. Cheers, TH
Author: Tom Head
Date: 2006-06-03T00:13:43-06:00

ID: 106158
Comment: It's negative media, and it's corporate media that doesn't give enough of a damn to actually do homework. That editorial board at The Clarion-Ledger is downright pitiful. Passives, cliches and illogic is a distasteful combination. And they could use a woman. Just one.
Author: DonnaLadd
Date: 2006-06-03T08:13:53-06:00

ID: 106159
Comment: BTW, it reminds me of their stupidity on tort reform and crime arguments (the same ones that brought us Melton). And with due respect to Jerry Mitchell over there, he lost me as a fan of his reporting when he did that one-sided and poorly researched mess on tort reform.
Author: DonnaLadd
Date: 2006-06-03T08:16:06-06:00

ID: 106160
Comment: And while we're talking about stupid Clarion-Ledger editorials, what strange hell is this?! Shall I count the ways... 1. Nobody else is calling it the "Hagel-Martinez bill"; the chief sponsor of the bill was Arlen Specter, so it would be more accurate to call it the Specter bill. But then Specter's name isn't Hispanic. 2. 15 million undocumented immigrants? That's quite an interesting number. 3. In any case, it doesn't grant all undocumented immigrants a citizenship path; only immigrants who have been here for years, as non-felons, paying their taxes. 4. And in any other case, since when does requiring someone to pay $3,250 in fines and go through a normal immigration track constitute "amnesty"? 5. The bill does not "add" in-state tuition for undocumented immigrants; it refuses to turn undocumented immigrants away from public universities, and if they happen to live in that state, then obviously they get in-state tuition just like everybody else. That's true whether the person in question is a peaceful U.S. citizen in good standing, a U.S.-born convicted child molester, a legal alien, an undocumented immigrant, or anything else. 6. American workers do have a "prevailing wage" guarantee; it's called the minimum wage. 7. "Tarred and feathered and run out of Washington on a rail"? And the C-L published this? Printing an editorial with a conservative point of view on this issue is one thing. Printing an editorial that is full of demonstrably false statements is another matter entirely. Cheers, TH
Author: Tom Head
Date: 2006-06-05T19:46:49-06:00

ID: 106161
Comment: (And yes, I'm well aware of the fact that Hagel and Martinez arranged the compromise. But Specter is still the chief sponsor of S. 2611, there were six cosponsors, and referring to it as the "Hagel-Martinez bill" is silly.)
Author: Tom Head
Date: 2006-06-05T19:48:47-06:00

ID: 106162
Comment: That is the most offensive and ill-informed opinion piece I have read in years. I second all of Tom's points, and I only wish that we could run Dot Word out of town on a rail. Way to represent the New South. Strange hell indeed. You know you're reading crappy writing when the author resorts to saying that the bill "has been called 'abominable,' 'incomprehensible,' 'a disaster' and 'a betrayal,' among other things." Uh, who called it those things? If it's The Economist, that's one thing. If it's your best friend Billy Ray after he's downed half a case of Beast, that's another. If you want to call the bill those names, just go ahead and do it. By the way, Tom, is it true that illegal immigrants are one-third of all federal prisoners? Is it true that the Senate bill admits 66 million foreigners over the next 20 years? (What this has to do with illegal immigration, I don't know.)
Author: Brian C Johnson
Date: 2006-06-05T20:31:12-06:00

ID: 106163
Comment: the bill "has been called 'abominable,' 'incomprehensible,' 'a disaster' and 'a betrayal,' among other things." Uh, who called it those things? Here's a fun game to play when you're bored: Count the passives in The Clarion-Ledger. If they would edit out 90 percent of the passives, they would be a better newspaper, in part because it would force them to do more reporting to actually be able to put subjects in those sentences to tell us who actually did those things. Hiding behind passives is Hideous Journalism 101. Ask Brian the warpath I go on over passives on press days around here. Some slip through, and now and then, one makes sense. But these strings of passives that pass for journalism in The Clarion-Ledger singlehandedly make this state look illiterate.
Author: DonnaLadd
Date: 2006-06-05T20:44:18-06:00

ID: 106164
Comment: The Clarion-Ledger: The Worst of the New South
Author: DonnaLadd
Date: 2006-06-05T20:44:41-06:00

ID: 106165
Comment: Brian writes: By the way, Tom, is it true that illegal immigrants are one-third of all federal prisoners? Is it true that the Senate bill admits 66 million foreigners over the next 20 years? Probably not, given that most of the other statistics in the article appear to be fabricated, but I didn't have time to check on it. I find the prison statistic highly improbable, though. The 66 million "foreigners" statistic is pure fortune telling and, if she's referring specifically to undocumented immigrants (and not to all "foreigners"--she doesn't really say which), really stupid fortune telling. Undocumented immigration went up from 3 million in 1986 to 11 million today, which is something like 370%, and the Senate bill increases border security; so it seems improbable that the rate of increase over the next 20 years would double the rate of increase from 1986-2006 unless she's saying that border security doesn't work, in which case I wonder why she supports spending all the money on border security that has been proposed in both S. 2611 and H.R. 4437. Incidentally, I did a little writeup on differences between the two bills, if anyone's curious. Cheers, TH
Author: Tom Head
Date: 2006-06-05T21:06:33-06:00

ID

106166

Comment

Also significant:

2006-06-05T21:14:24-06:00