Pro-Whistleblower Reform in the Post-Garcetti Era

Whistleblowers who expose government ineptitude, inefficiency, and corruption are valuable assets to a well-functioning democracy. Until recently, the Connick-Pickering test governed public employee speech law; it gave First Amendment protection to government employees who spoke on matters of public concern-such as whistleblowers-so long as the government's administrative concerns did not outweigh the employees' free speech interests. The Supreme Court significantly curtailed the protection of such speech in its recent case, Garcetti v. Ceballos. This case created a categorical threshold requirement that afforded no protection to speech made as an employee rather than as a citizen. Garcetti's problematic rule has forced courts to adopt odd exceptions; it has created perverse incentives and sits uncomfortably within established First Amendment doctrine. This Note encourages a move away from Garcetti by advocating for a tripartite balancing framework, whereby speech is sorted according to its importance rather than the speaker's role. In the case of whistleblowers, this system would help ensure that the government can only restrict speech by government employees exposing public wrongdoing under extraordinary circumstances. This framework is more compatible with the rest of First Amendment doctrine and ensures the protection of speech that is most valuable to society.INTRODUCTIONIn the modern administrative state, millions of citizens call the government "boss."1 As such, the government assumes a dual role-employer and sovereign.2 The practicalities of government employment vest the government-employer with far broader powers than those usually possessed by the government-sovereign.3 Defining the scope of these extended powers is a difficult, ongoing task, particularly within the realm of the First Amendment.4The Framers placed great weight on protecting freedom of speech. James Madison considered the First Amendment "the most valuable amendment [o]n the whole list."5 This elevated praise recognizes its centrality in protecting the viability and vitality of democratic self-governance.6 Accordingly, the First Amendment protects a symbiosis: as part of the polity, citizens seek to contribute important ideas to the public discourse, and, as a society, the community has a strong interest in receiving these ideas.7 Yet the First Amendment's concerns sometimes conflict with the government's interest in operating an efficient workplace.8 The government must avoid workplace disruption, promote employee morale, and discipline those who undermine the integrity of the workplace and agency.9 The history of public employee speech law, then, is one of an uneasy and constantly shifting relationship between protecting the employee's speech and the government-employer's administrative concerns.There is no single definition of a whistleblower, and it takes on different contours in different contexts.10 However, it appears that the term enjoys an expansive definition in public employee speech law, where it is "defined in the classic sense of exposing an official's fault to a third party or to the public."11 That is, a whistleblower is a public employee who, after learning of governmental misfeasance or nonfeasance, discloses this knowledge internally- through formal or informal channels-or publicly. This Note adopts this denotation.Whistleblower speech is critically important because it helps ensure a well-functioning democracy.12 Government officials are responsible to, and representative of, the public. When they misappropriate resources or engage in misconduct, they undercut the public interest. But such misdoings must be known for them to be punished and corrected. Since "[g]overnment employees are often in the best position to know what ails the agencies for which they work,"13 society disproportionately relies on them to ensure quality in government.14 Nonetheless, the specter of termination threatens to suppress this type of speech and deprive the public of information that is critical to a well-organized democracy. …