Against Legislation: Garcetti v. Ceballos and the Paradox of Statutory Protection for Public Employees

In Garcetti v. Ceballos, the Supreme Court denied constitutional protection to a deputy prosecutor named Richard Ceballos. In reaching its decision, the Court pointed to the plethora of statutory protections that were available to government whistleblowers. A closer examination of these statutory alternatives reveals that they will not protect Ceballos. This is the paradox of statutory protection in labor and employment law-more sometimes is less for vulnerable workers. This Article places the Garcetti case in the historical trajectory of worker protection—from no protection to statutory protection. This Article argues for a move toward constitutional and international protection rather than statutory protection for several reasons. First, as shown by the Garcetti case, courts can sometimes use the existence of statutory protections as a reason to deny protection in a particular case. Second, the statutory rights that have been provided in the past have ailed to adequately protect whistleblowers, as shown by several recent studies. Finally, legislation to protect government whistleblowers is inherently limited by the fact that the very people creating the legislation are likely to be the targets of the whistleblowing. Thus, there is a built-in incentive to weaken statutory protection for whistleblowers. After decisions like Garcetti, it may seem hard to argue for a greater reliance on constitutional rights to protect whistleblowers. This Article argues for constitutional rights because of the importance they hold in our legal system, and because whistleblowing is the kind of core political speech that the First Amendment is supposed to protect. Thus, this Article applies progressive constitutionalist ideas to both Garcetti and the protection of whistleblowers generally, as a way to break down the distinctions between employees that the Court\u27s decision creates. In this Article, the author argues, for several reasons, that even in the face of a decision like Garcetti courts should not be dismissed as a strategy for protecting whistleblowers. First, the Garcetti decision can be limited to its unique facts through further litigation. Second, I argue for judicial protection of whistleblowers because there is nothing in the Constitution that suggests whistleblowers should not be covered. Finally, while whistleblowing is still protected for most employees, it is important to maintain constitutional protection for public employees because of the important political values that government whistleblowing embodies