Letter to the editor

Decision won’t hurt whistle-blowers

I was extremely disappointed by your editorial, “Concerned
employees should not be silenced” (May 31). Your piece makes
numerous unsubstantiated and misleading claims. I will point out
only the two most obvious:

The Supreme Court’s decision in Garcetti v. Ceballos does
not somehow “supersede” existing policies (nor does it
create a federal “standard” on whistle-blower
protection). The ruling in no way affects employer policies
protecting whistle-blowers, and certainly does not
“supersede” such policies. If the Court had decided to
grant workers whistle-blower protection under the First Amendment,
the Court’s decision would indeed supersede employer policies
denying employees such protection. But as written the decision
merely allows employers to set their own standards, which may in
fact protect whistle-blowers. To imply otherwise borders on
outright falsehood.

Additionally, you state that the decision involves a “loss
of protection for whistle-blowers against retaliation,” but
this claim is utterly unsubstantiated. Nowhere does the editorial
attempt to demonstrate that the decision involves an actual
“loss” of protection previously enjoyed. In fact,
Garcetti overrules no other Supreme Court decision: whistle-blowers
have never enjoyed protection from employer
“retaliation” when such speech occurs as a part of that
employee’s duties. Indeed, though your editorial expresses
concerns about “line-drawing,” it would of course be
even more difficult for the Court to draw a principled
“line” between a disgruntled employee refusing to
perform basic job-related functions and the type of
“whistle-blowing” activity that your editorial praises
so lavishly.

Noah Peters Student, University of Virginia School of
Law