O’Scannlain Finds Friends in Highest Court

Sure it’s bad news for would-be government whistleblowers, but a ruling by the U.S. Supreme Court yesterday threw a nice bone to Ninth Circuit Judge Diarmuid O’Scannlain.

In a 5-4 opinion split along the court’s standard ideological lines, Justice Anthony Kennedy overturned a Ninth Circuit ruling, writing that when “public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” The ruling came in Ceballos v. Garcetti, the case of a Deputy Los Angeles District Attorney who was disciplined for revealing inaccuracies in a deputy sheriff’s affidavit that was used to obtain a search warrant.

Near the beginning of his opinion Kennedy pointed to O’Scannlain’s special concurrence to the Ninth Circuit opinion as a guidepost. “Agreeing that the panel’s decision was compelled by Circuit precedent,” Kennedy wrote, O’Scannlain “nevertheless concluded Circuit law should be revisited and overruled. Judge O’Scannlain emphasized the distinction ‘between speech offered by a public employee acting as an employee carrying out his or her ordinary job duties and that spoken by an employee acting as a citizen expressing his or her personal views on disputed matters of public import.’ In his view, ‘when public employees speak in the course of carrying out their routine, required employment obligations, they have no personal interest in the content of that speech that gives rise to a First Amendment right.’”

Kennedy adopted O’Scannlain’s reasoning, leading to a hearty debate over whistleblower rights — and outcry from whistleblower advocates, who say government employees now have less incentive than ever to pipe up.

— Justin Scheck