High Court Tightens Rule on Workplace Speech

A new Supreme Court ruling could make it much more difficult for public employees to bring retaliation claims against their bosses for critical reports they make through the chain of command. By a 5-to-4 vote, the court ruled that public employees have no First Amendment right to make internal reports that their bosses don't like.

The case involved a Los Angeles prosecutor who recommended that a case be dropped because he believed that a sheriff's deputy had lied on a search warrant affidavit. The prosecutor said the district attorney's office demoted him for what he said should be constitutionally protected speech. The justices ruled that his speech on the job is not fully protected.

For 40 years, the Supreme Court has dealt with public employees' First Amendment claims by balancing the interests of the employees to speak on matters of public concern on the one hand, and preserving the interests of public agencies in a disruption-free workplace on the other. But the new ruling carves out an exception for on-the-job speech that is not protected by the First Amendment. The exception is any speech undertaken as part of the employee's duties.

The fifth and decisive vote in the ruling was cast by the court's newest justice, Samuel Alito. The case was originally argued in October, when Justice Sandra Day O'Connor was still on the bench, and then reargued in March after Alito was sworn in. The lead dissent in the decision was written by Justice David Souter.

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