First Amendment to the Constitution of the United States of America

First Amendment to the Constitution of the United States of America:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Saturday, August 24, 2013

On the same day, one whistleblower gets to sue the government and another gets 35 years in prison

In separate decisions handed down last Wednesday, courts gave starkly different treatment to two whistleblowers, highlighting oddities in First Amendment law.  

In one case, Dahlia v. Rodriguez, whistleblower Angelo Dahlia (a police officer) alleged he was punished by his superiors for telling his union and outside law enforcement about misconduct within his department.  The Ninth Circuit ruled in a rare en banc opinion that Dahlia could proceed with a civil rights claim that he was unjustly retaliated against for disclosing the conduct of his fellow officers, ruling that “often ... unless public employees are willing to blow the whistle, government corruption and abuse would persist undetected and undeterred.”

US Supreme Court cases craft a weird rule in First Amendment law:  if a government worker blows the whistle inside a government body's chain of command as part of his or her official duties, then the First Amendment generally will not protect the worker's speech, but if the worker blows the whistle to outside sources -- including the media -- the First Amendment generally will offer protection if the speech is of sufficient public concern.  Same speaker, same information, but different audience = different rules. That helps explain the result in the Dahlia case, but what about the other decision handed down on Wednesday?

In the other -- and far more famous -- case, soldier Bradley (now Chelsea) Manning, was demoted, dishonorably discharged and sentenced to 35 years in prison for telling the media (via Wikileaks) about government misconduct, including the killing of civilians in Iraq.

In both cases, the whistleblower went outside the chain of command.  Why is Dahlia looking forward to redemption for the retaliation he faced, while Manning is looking forward to the better part of his life in Fort Leavenworth?

An easy distinction is that Manning disclosed classified information.  That is too easy.  What if a police department simply called its actions and conduct "classified"?  Surely, that label alone cannot be the end of the analysis.

Manning says she revealed classified information, "out of a love for my country and my sense of duty to others," in an effort to make a positive difference in policies and awareness of government conduct.  Dahlia didn't like the way his fellow officers were treating suspects in custody.  The Ninth Circuit applied a fact-specific inquiry to protect Dahlia's speech.  There was no protecting Manning's speech.

Something is not right with these rules and the discrepancies in last week's decisions.  They simply cannot be reconciled from a constitutional perspective.  There ought to be greater First Amendment protections for reporting inside the chain of command and there ought to be at least some protections on a case-by-case basis even in the military context for whistleblowing outside the chain of command.

Or else, as the Ninth Circuit put it in the Dahlia case, "government corruption and abuse" will "often ... persist undetected and undeterred.”

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