This week, the Ninth Circuit agreed to rehear en banc a case about a cop who revealed the abuse of suspects inside his department. The Ninth Circuit has developed a troubling line of cases to the effect that, under the Supreme Court's 2006 decision in Garcetti v. Ceballos, any time a police officer in the state of California reports misconduct, he is just doing his job — which means he is speaking as an employee not as a member of the public and is therefore not protected by the First Amendment. Most other circuits (and indeed some decisions within the Ninth Circuit) hold that whether a whistleblower is speaking as an employee is a question of fact and no categorical rule is appropriate. Hopefully the Ninth will resolve this conflict when it rehears the case in March.
Disclosure: Public Citizen is co-counsel on the petition for rehearing. The panel decision (criticizing but reluctantly following the reporting-misconduct-is-part-of-the-job rule) is here.
