Whistleblowing In The Wind

This commentary was written by CBSNews.com's Dick Meyer.

Human nature dictates that in large organizations there will always be a certain amount of fraud, stealing, abuse, cheating, waste and corruption. Human ingenuity attempts to create obstacles to that dark side of human nature.

For government organizations, the obstacles to wrongdoing include the separation of powers, judicial and legislation oversight, inspectors general, a free press and protections for whistleblowers. Honest government happens when some combination of these obstacles work.

The balance of human nature and ingenuity in government may have been altered this week, thanks to the U.S. Supreme Court.

In a 5-4 ruling, the court decided that the First Amendment does not protect public employees that report misconduct or otherwise try to blow whistles in the course of doing their official duties. The majority opinion said, however, that public employees would have First Amendment protections if they spoke out as private citizens engaged in what Justice Kennedy called "civic discourse."

Under this ruling, there could be the odd, if not absurd situation where a whistleblower would be immune from retaliation if he ratted out his agency to a reporter but in jeopardy if he went through official channels and complained to the agency's inspector general.

A story about this decision was on the front page of The Washington Post. You only needed to skim the rest of the front section to understand why this was a very important ruling.

On page A13 there was a story about how a State Department official stationed in Kenya may have been transferred as a result of a memo he wrote critical of U.S. policy in Somalia.

On page A18 there was an article about how field employees and scientists at the National Oceanic and Atmospheric Administration are no longer allowed to answer press questions about protecting endangered salmon species. Some of them apparently said things the administration disliked. Now only three people at NOAA are allowed to talk about salmon to reporters; they are all political appointees.

Those two stories about government employees trying to do the right thing are culled, randomly, from one section of one newspaper on one day. The federal government has about 4.1 million employees (counting military). Roughly $2.6 trillion will pass through those hands this budget year. Another 15.9 million people work for state and local governments in this country. The mind boggles at how many whistles there are to be blown.

In this context, taking away one obstacle to waste, fraud and abuse may matter quite a bit. Most public employees are honest. And most are also risk averse. The Supreme Court has now made it easier for all public employers to retaliate against employees who attempt to report, officially, potential wrongdoing or who dissent. That serves consumers of government poorly.

In his majority opinion, Justice Kennedy certainly expressed common sense when he wrote, "Government employers, like private employers, need a significant degree of control over their employees' words and actions; without it, there would be little chance for the efficient provision of public services."

Yes, of course, if every employee had a First Amendment right to say and write anything, orderly business would be impossible. Every gripe would be a constitutional case.

Kennedy added that there are state and federal laws intended to protect whistleblowers from official retaliation. And as another level of protection, the public employee remains a private citizen and may, according to Kennedy, speak publicly with constitutional protection, to some unspecified degree, as a private citizen.

Justice John Paul Stevens, in his dissent, expresses even more common sense: "The notion that there is a categorical difference between speaking as a citizen and speaking in the course of one's employment is quite wrong… Moreover, it seems perverse to fashion a new rule that provides employees with an incentive to voice their concerns publicly before talking frankly to their superiors."

Before this ruling, courts could look at individual cases and decide if a public employee's constitutional rights had been compromised by the employer for something done on the job.

That seems sensible and this change seems far too sweeping. As Justice Stevens also wrote, "The proper answer to the question 'whether the First Amendment protects a government employee from discipline based on speech made pursuant to the employee's official duties' is 'Sometimes,' not 'Never.'"

Not being a lawyer or a constitutional expert, I can't get too strident about the technicalities of this decision. But I know this: this administration has done severe damage to the legitimacy of our government by misleading citizens on matters of war and peace. Legitimacy will be rebuilt by strengthening the mechanisms and institutions intended to bring accountability to government, not by weakening them.

Without whistleblowers and public servants willing to take risks by speaking out, officially and privately, we probably wouldn't know about Abu Ghraib, the NSA's domestic surveillance, secret prisons in Eastern Europe or possible murders in Haditha. It is a bad time in history to give them less protection.

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By Dick Meyer