How the New Whistleblower Law Might Help the Administration Keep a Lid on Leaks

The Obama administration has been notoriously hostile towards leaks, and has been accused of doing “more than any modern executive to wage war on whistleblowers.” Why, then, would the administration go out of its way to not only sign the Whistleblower Protection Enhancement Act in December, but also to write a Presidential Policy Directive explicitly creating protections for whistleblowers in the intelligence community?

The answer likely lies in understanding the 2006 Supreme Court decision in Garcetti v. Ceballos. That decision carved out a peculiar exception to the First Amendment for certain public employees, essentially giving them an incentive to go public with any concerns about corruption or abuse, rather than complaining internally, up the chain of command. For an administration intent on preventing public leaks, this incentive structure is entirely backward.
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A Ray of Sunshine in the Second Circuit’s Recent Opinions on Public Employee Free Speech Rights

The Second Circuit has recently handed down a number of decisions denying public employees’ First Amendment claims, right up until this past Wednesday. While the decisions have been reached on varying grounds, each one necessarily implicates the seminal Supreme Court decision in Garcetti v. Ceballos, which I’ve written about previously here and here.

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Stokes v. City of Mount Vernon: Garcetti Revisited

I keep meaning to blog about a recent decision that came down in the Southern District of New York concerning a public employee’s free speech rights under the First Amendment, but Wait a Second beat me to the punch.

I wrote previously about how a Supreme Court decision dramatically curtailed the free speech protections of public employees, resulting in some odd incentives. In the case at hand, the question concerns the legality of retaliation by a government entity that does not have a direct employer-employee relationship with the person whose speech is in question. As Wait a Second writes:

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Free Speech and Government Employees: Garcetti and Absurd Results

The intersection of First Amendment law and employment law can be fascinating — and can lead to extremely bizarre outcomes. In the last post, I discussed how the Court’s interpretation of the First Amendment led it to allow churches to, say, fire a minister for becoming pregnant, even where the religion itself has no inherent problem with pregnant ministers.

In this post, I want to discuss how the Court has interpreted the First Amendment to allow governments to retaliate against employees for exposing corruption — but only if the employee’s job is to expose corruption. Make sense? I didn’t think so.

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