Washblog

Tuesday's decision left open the possibility that an employee might be shielded by the First Amendment if he acted as a "citizen," rather than in an official capacity, and took his complaints to a newspaper or a state legislator.

Justice John Paul Stevens, in a separate dissent, said it "seems perverse" to protect whistle-blowers who go public, while punishing those who take their concerns to their managers.

"We think this is a bad decision, but it may not be a catastrophe," said Peter Eliasberg, an ACLU lawyer in Los Angeles. "It basically says, if you go to the L.A. Times, you might get some protection. But if you report it in the office and up the chain of command, you don't have any protection under the First Amendment."

In essence, McDermott did what is described in the bolded portions of the blockquote.  He's a public servant, and he took is evidence of misdeeds by Boehner, Gingrich, Armey, et al. to the news media instead of going through official channels (that would have been the House Ethics Committee).  

Yes, yes, I know that Congressman McDermott wasn't and isn't an employee of Newt Gingrich and his cronies.  I know that he wasn't and isn't a "whistleblower" in the precise sense of the SCOTUS decision in Ceballos.  Still, the situations do share some analogous features, so perhaps in the next round of appeals McDermott's lawyers will be able to cite this case in addition to Vopper v. Bartnicki in their pleadings.

I have the vague memory of seeing GOP bleatings on McDermott's case to the tune of "he should have taken his information to the House Ethics Committee instead of going to the New York Times", but haven't turned up anything on the web today to support that recollection.  The analogy doesn't hold, of course, in that McDermott couldn't have been disciplined or fired as was Richard Ceballos.  In fact, though, McDermott did recuse himself when the Gingrich case was studied by the Ethics Committee, and subsequently resigned his position as ranking Democrat on the committee.

Much as I admire Jim McDermott, and much as I would like to see the potentially-bankrupting Appeals Court ruling against him reversed, the Ceballos decision is still a chillingly fresh reminder of the longterm damage that has been and will be inflicted on our nation by George W. Bush, in the persons of Chief Justice Roberts and Justice Alito.