I think the Supreme Court’s ruling today against government whistleblowers — deciding that they have no First Amendment protection for their complaints if those complaints are part of their jobs — will result in more anonymous leaks of information not through the press but through the many means of anonymity that the internet provides. That is, Deep Throat would blog.
Jack Balkin and Marty Lederman each explain this decision well at Balkinization. Says Lederman:
Today, the Court took that very signifiant step, holding that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” This apparently means that employees may be disciplined for their official capacity speech, without any First Amendment scrutiny, and without regard to whether it touches on matters of “public concern” — a very significant doctrinal development.
So you won’t see people blowing the whistle through the press because the government may well take reporters to court and jail and find out their identity. As Jack explains, you won’t see them going through channels because that loses them their First Amendment protection. You won’t see them compaining publicly because they’ll lose their jobs.
Who loses? We the people, on two counts: Our government is less accountable and our First Amendment has a new boundary.
