: First Amendment : Whistleblower Protection Blog

Kohn Op-Ed in New York Times tells the story behind America's first whistleblower protection law

Posted on June 13, 2011 by Richard Renner

Stephen M. Kohn, Executive Director of the National Whistleblowers Center (NWC), published an op-ed article in today's New York Times.The article tells the story of Captain John Grannis, and nine other sailors of the Continental Navy. The full story is contained in The Whistleblower's Handbook. The actual documents from the Continental Congress are linked here.

These courageous sailors and marines petitioned the Continental Congress to relieve the commander of the Continental Navy, Commodore Esek Hopkins. The sailors reported that Hopkins had engaged in misconduct including, the torture of British prisoners of war.

On March, 26, 1777, the Continental Congress accepted the petition and suspended Hopkins as leader of the Navy. he would later be formally discharged.

Hopkins was politically connected, and he retaliated immediately against America's first whistleblowers. He filed a criminal libel case against the whistleblowers in Rhode Island's court. Samuel Shaw, a midshipman, and Richard Marven, a third lieutenant, were detained during the proceedings. On July 23, 1778, they pleaded to Congress that they had been “arrested for doing what they then believed and still believe was nothing but their duty.”

Without any recorded dissent, Congress declared:

That it is the duty of all persons in the service of the United States, as well as all other inhabitants thereof, to give the earliest information to Congress or any other proper authority of any misconduct, frauds or misdemeanors committed by any officers or persons in the service of these states, which may come to their knowledge.

Congress did not stop there. It also authorized payment for the legal fees of Marven and Shaw. Kohn calls this act "America’s first whistle-blower-protection law." With the help of attorney William Channing, the whistleblowers won an acquittal.

Kohn points out that today's America does not go so far in protecting whistleblowers. The Obama Administration is detaining and prosecuting Bradley Manning for allegedly releasing documents to WikiLeaks. It also prosecuted Thomas Drake for disclosing mismanagement of the National Security Administration (NSA) to the Baltimore Sun. Today's whistleblowers have no protection when they lose their security clearance, and employees of the NSA and CIA are excluded from the Whistleblower Protection Act (WPA).

Kohn's article is a fitting tribute to the First Amendment on the fortieth anniversary of the day the New York Times began publishing the Pentagon Papers.

Tags: Continental Congress, First Amendment, National Security, News, Pentagon Papers, Stephen M. Kohn, The Whistleblower's Handbook, WPEA

Ninth Circuit protects social worker's court testimony

Posted on January 24, 2011 by Richard Renner

Last week, the U.S. Court of Appeals for the Ninth Circuit issued an opinion holding that a social worker is protected from retaliation for his courtroom testimony about a former client. The case is Clairmont v. Sound Mental Health and Wilson, No. 09-35856 (9th Cir. 2011).

From 2005 to 2007, Sound Mental Health (SMH) of Seattle, Washington, employed Richard Clairmont as a domestic violence program manager. He supervised a treatment program for offenders and members of the public. SMH had a contract with the Seattle Municipal Court. In exchange for providing the services and making regular reports to the Court, the Court gave SMH office space and equipment. Joni Wilson was the Manager of Probation Services for the Court.

In 2007, a criminal defense attorney subpoenaed Clairmont to provide expert testimony in her client's case. The client spoke Spanish, and had been terminated by a competing treatment program. Clairmont agreed to provide the testimony about the possibility that the client was treated differently because of the language issue. The Court's probation office was seeking a court determination that the client had violated the terms of probation such that the court should revoke probation and impose a jail sentence. When Wilson learned about Clairmont's testimony, Wilson called Clairmont's supervisor at SMH. Two weeks later, SMH fired Clairmont because of "critical feedback from the City of Seattle Domestic Violence Probation Officers Unit about your performance." The letter noted that "The program is in jeopardy. They have proposed a stop-referral beginning immediately. This leaves SMH with no option but to terminate your employment effective today.

The Ninth Circuit held that Clairmont could pursue a First Amendment claim because "his relationship to the Municipal Court was analogous to that of an employer and employee." A state agency cannot "abuse its position as employer to stifle the First Amendment rights its employees would otherwise enjoy as citizens to comment on matters of public interest." The Court held. The Court declined to hold that all court testimony is protected, but instead held that Clairmont's specific testimony here "helps the public evaluate the performance of public agencies." That is enough to address a "matter of public concern." Sworn courtroom testimony will constitute speech on a matter of public concern when it “bring[s] to light potential or actual discrimination, corruption, or other wrongful conduct by government agencies or officials.”

In this case, it helped that Clairmont was addressing a matter of discrimination, civil rights violations, and threats to public safety. "[S]peech exposing policies that put people in jeopardy is inherently of interest to the public."

The Court rejected Wilson's claim that Clairmont was testifying as part of his official duties. If Wilson had been successful on this point, it could have required a dismissal of the case under Garcetti v. Ceballos, 547 U.S. 410, 420 (2006). The Court said there was no evidence in the record that this testimony was part of his official duties. The Court also rejected Wilson's claim that qualified immunity should apply. The Court found that the First Amendment right to testify in court about discrimination was well-established. The Court remained Clairmont's claims to the district court "for trial."

Congratulations to Richard Clairmont and his attorney, Jesse Wing of Seattle, Washington.

Tags: First Amendment, Garcetti, Government Whistleblowers, Healthcare, Seattle, discrimination, domestic violence, public concern

NWC Executive Directors Discusses 1st Amendment and WikiLeaks on CBS Evening News

Posted on January 11, 2011 by Lindsey Williams

On Saturday, January 8, 2011, Stephen M. Kohn, National Whistleblowers Center Executive Director, appeared on CBS Evening News. The news segment covered the United States Department of Justice subpoena of private information on select WikiLeaks supporters. The government may have the right to this type of information, but it is vital to weigh First Amendment rights as well. Listen in on this short clip and judge for yourself.

*Sabeen Khanmohamed (a NWC intern) contributed to this posting

Tags: First Amendment, National Security, Wikileaks, national security whistleblowers, whistleblower

WikiLeaks Scandal Demonstrates Need for Whistleblower Protection

Posted on January 8, 2011 by Lindsey Williams

Today, Stephen Kohn, Executive Director of the National Whistleblowers Center, issued the following statement expressing his concern about the rise in retaliatory investigations in the wake of the WikiLeaks scandal:

The WikiLeaks scandal is being used to justify a witch hunt against federal employees suspected of being whistleblowers. Currently, the NWC has obtained information documenting abusive investigatory tactics being used against federal employees, including monitoring the private emails and seizing computer hard-drives from employees who disclosed non-classified information to Congress. The U.S. Constitution protects government workers who report waste, fraud and abuse to the American people. However, in the first two years of the Obama presidency, more Americans have been indicted for alleged media leaks then under any other president in U.S. history, including Richard Nixon.

We are concerned that the administration is hiding behind the WikiLeaks scandal to identify and retaliate against other whistleblowers who have engaged in protected First Amendment speech, including implementing questionable psychological profiling in an attempt to find suspected leakers. The American people need to know about government abuses. Prosecutors involved in so-called "leak" investigations must respect the First Amendment rights of all federal employees, and cannot engage in unconstitutional investigatory tactics that will have a 'chilling effect' on the right of federal employees to disclose waste, fraud and abuse.

Congress must enact a National Whistleblower Protection Act to ensure that all Americans have legitimate channels to expose wrongdoing to appropriate authorities. The government cannot have it both ways. If employees are denied the right to expose wrongdoing through effective and legally protected channels, honest American civil servants will continue to leak information to the press and public. Until the law is fixed, we are in a lose-lose situation.

Links:

Petition for National Whistleblower Protection Law

Guardian article by Stephen Kohn

White House memo to federal agencies on how prevent leaks of classified information

The Nation article " 'Are You Now or Have You Ever Been a Whistleblower?': White House Targets 'Insider Threats' Among Federal Workers"

Tags: First Amendment, National Security, Wikileaks, classified information, national security whistleblowers, whistleblower

Sixth Circuit says local officials are liable for statements that cause discharge

Posted on July 30, 2010 by Richard Renner

The Sixth Circuit U.S. Court of Appeals issued a decision this week that local government officials can be held liable for accusations they make against citizens when it is "reasonably foreseeable" that their statements will cause the citizen to be fired from their job. Martha Paige worked as an accountant for Bunnell Hill Development Company in Warren County, Ohio. She and her husband owned a large farm in that county. When Paige learned about a proposed road project that would interfere with their farming, she organized the Residents' Association of West Central Warren County. On August 6, 2007, Paige attended a public meeting of the Warren County Port Authority. Kimberly Coyner is executive director of the Port Authority. Before the meeting started, Coyner asked Paige about where she worked, and Paige disclosed that she worked for Bunnell Hill. During the meeting, Paige identified herself as president of the Residents' Association, and expressed concerns about an interstate project. Paige alleges that on August 13, 2007, Coyner called Bunnell Hill and told a manager that Paige identified herself as speaking for Bunnell Hill. On August 16, 2007, Bunnell Hill fired paige for using the company name to oppose the interstate project, and disclosed Coyner's call as a basis for the termination.

Paige sued Coyner, Warren County and the Port Authority. The district court dismissed in part on grounds that the county was not responsible for the decision of Bunnell Hill to fire Paige. The Sixth Circuit focused on Conyer's actions as alleged in Paige's complaint. Unlike other cases in which citizens sought to make private entities liable for acting in concert with government officers, in this case Paige sought to hold the local governments and their official responsible for their own actions. Interfering with Paige's employment was certainly "severe enough to deter a person of ordinary firmness from speaking at public meetings," the Court said. That Bunnell Hill cited Conyer's statement, combined with the close timing, is enough to find that Paige's First Amendment activities caused her discharge. The Court also held that whether Paige's discharge was "reasonable foreseeable" is a fact question the jury can determine. The Court repeatedly noted that Paige alleged Conyer's statement about her using Bunnell Hill's name in her public comments was false. I think that Paige should have a good case of retaliation even if Conyer's statement was true. Either way, a government official's call to a manager to get a person fired for exercising First Amendment rights is wrong. As the Sixth Circuit concluded, "What they [public officials] cannot do, however, is take action in order to punish a citizen for exercising his or her constitutional rights." Judge Boggs, concurring, noted that the Sixth Circuit had analyzed a similar claim in which the actionable speech did not have to be false or defamatory if it would "threaten [the palintiff's] economic livelihood directly or indirect." Fritz v. Charter Twp. of Comstock, 592 F.3d 718, 724 (6th Cir. 2010). District Judge McCalla also concurred and added that Bunnell Hill's situation in response to Conyer's statement could be considered "state compulsion" such that it would be a "state actor." The case is Paige v. Coyner, 09-3287 (6th Cir. 7-26-2010). Congratulations to attorney Stephen A. Simon of Tobias, Kraus & Torchia in Cincinnati, Ohio, for the victory.

Tags: 42 U.S.C. 1983, Conyer, Corporate Whistleblowers, First Amendment, Government Whistleblowers, Paige, Section 1983, Sixth Circuit

Translator can sue under Bivens for retaliatory termination

Posted on September 25, 2009 by Richard Renner

Even federal agencies use independent contractors and skirt the protections provided to "employees." This month, a federal judge in Washington, DC, held that a former translator can sue the Voice of America officials who terminated her contract after she made an anti-war music video. Using the authority of Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), Judge Ellen Segal Huvelle has ordered that Melodi Navab-Safavi can proceed with her lawsuit against the Broadcasting Board of Governors (BBG) and its officials. Judge Huvelle noted that Navab-Safavi made the video on her own time, without using any government resources.“[T]he law is settled that as a general matter the First Amendment prohibits government officials from subjecting an individual to retaliatory actions . . . for speaking out.”

Judge Huvelle adds, “public employees do not surrender all their First Amendment rights by reason of their employment.” She also held that music and internet postings have First Amendment protection, and that such protection applies to contractors as wells as employees.

Navab-Safavi worked for the Voice of America Persian Service as a translator. She worked with a pop band called Abjeez whose other members live in Sweden. Abjeez is banned in Iran. It makes songs and videos about women's rights and other social problems in Iran. As part of Abjeez, Navab-Safari made and appeared in a video called, "DemoKracy." It protests U.S. involvement in Iraq and portrays coffins of Iraqi civilians and Americans. Navab-Safavi alleges that one of the defendants told her that her video had become, "a disproportionate problem" for her because she was "an Iranian." Judge Huvelle concluded this was sufficient evidence of an unlawful motive to retaliate.

To apply Bivens, Judge Huvelle had to find that no alternative legal means provided the plaintiff with relief. Judge Huvelle held that Navab-Safavi could not obtain damages for the retaliation she suffered through the Contract Disputes Act (as her claim was not for breach of the contract, but rather for retaliatory termination) or the Administrative Procedures Act (no provision for damages).

Rick Salzman and Carolyn Lerner of Heller, Huron, Chertkof, Lerner, Simon & Salzman represent Melodi Navab-Safavi. Congratulations to them all for this significant First Amendment victory.

Tags: Abjeez, Bivens, First Amendment, Iran, National Security, Navab-Safavi, Voice of America

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