A Public Concern: Protecting Whistleblowers Under the First Amendment

By Steven Still

The United States has just witnessed an impeachment debate which may have far-reaching ramifications for our democratic institutions. These hostilities began with an anonymous whistleblower complaint from a government employee, disclosing what he or she believed were illegal activities directed by President Donald J. Trump. Ever since, discussion of whistleblowers has taken on greater salience in the news cycle.

Today, there are a number of whistleblower statutes that protect employees who disclose knowledge of their employer’s illicit activities from workplace retaliation. Although whistleblowing is not unique to government workers, these individuals have an added layer of protection afforded to them by the First Amendment. Free speech protections for public employees, first recognized in the U.S. Supreme Court’s 1968 decision in Pickering v. Board of Education, have since developed an expansive body of case law. Vague terminology and legal standards have led to inconsistent rulings among courts. This Note argues that greater consistency in the treatment of whistleblowers is possible by refocusing on the key underlying principle articulated in Pickering: the public’s right to hear information that can add to public discourse. This Note proposes that the existing framework should be modified so as not to categorically preclude free speech protection for expressions made “as an employee.”