In his majority opinion, Justice Anthony M. Kennedy noted that public employees that make statements outside of their official duties could still be eligible for protection under the First Amendment.
Generally, federal policies direct concerns about waste, fraud, abuse, etc., through agency inspector generals or other internal agency channels.
Nonetheless, say employee unions, the decision is a further erosion of whistleblower protections for federal employees, and according to the National Treasury Employees Union, one that “will have a chilling effect on the ability of public employees at all levels of government to speak out on matters of public interest in work-related statements made in the course of their duties.”
“The loss of constitutional protection may have a serious impact on employees’ willingness to bring important issues of abuse, waste or misconduct to light,” said NTEU president Colleen M. Kelley.
The majority decision also cited a need to prevent an increase of litigation relating to constitutional protections for employees in disputes with employers. The decision overturned a circuit court’s ruling that Ceballos’s communications were protected, but the majority opinion said that would invite an overly burdensome oversight role for the courts.
However, NTEU argued just as much litigation would result over the nature of the employee’s duties and whether speech is pursuant to those duties or merely “related to those duties.”
Kelley noted that scientists at the Nuclear Regulatory Commission and the Food and Drug Administration are examples of employees whose duties are not easily defined and who may be moved to raise important matters of public concern.
In a dissenting opinion Justice Stephen G. Breyer said the majority opinion effectively says “never” and is too “absolute.”
