If he/she goes along with it.

I think you have an unrealistic view of how these situations work.

First, no agency will have a consistent policy of ignoring complaints, so that employees will know to go straight to the press. Different supervisors are different. Plus, you might have a low opinion of a supervisor, but still go to them with your problem, hoping they will do the right thing — or if not, that their boss will.

Second, it will almost never happen that an employee goes to the press to dish dirt on problems with his agency, and suffer “no repercussions.” Maybe your point is that, if he suffers repercussions, he can file a lawsuit and win. Maybe, but that’s usually small consolation. Plus, there are repercussions and then there are repercussions. Some are easier to prove than others.

Not quite. It has to have been the decisive factor, not just a factor. I said:

Granted, if the employee can make the case that the employer is retaliating only for the public speech, he may still have a case.

More precisely, the employee must first show that the public speech was a motivating factor — but still loses if the employer can show that it would have discharged him for the private speech anyway.

I’ll update the post to reflect this.

Ironically, if he had simply gone straight to the press, bypassing all internal efforts to resolve the situation, he would have at least a potential First Amendment claim, subject to a traditional balancing test that would, in my judgment, probably favor his case.

That’s because when he’s working in his official capacity, he does not have all the rights of a private citizen. This is emphasized to all federal employees when they are hired and when they are advised about discussing issues with the press. The concern is that a federal employee can be (wrongly) considered to be acting as an agent for the federal government when they do so.

He must have had some alternate courses of action regarding both his concerns (assuming they were valid) and his adverse consequences (demotion). They are two different activities - one is “whistleblowing” and the other is the employee grievance process.

This is also why most members of federal law enforcement agencies, the military, and the intelligence community don’t speak out until they are retired. They are then no longer at risk of being misconstrued as a spokesman for their former employer.

By disciplining employees promptly when they raise embarrassing matters of public concern, for one. If employers can provide undisputed evidence that the employee would have been disciplined anyway, for internal speech, a jury will never hear the claim. This will encourage swifter punishment for interal and embarrassing speech on matters of public concern.

No it won’t. If an employer were dumb enough to adopt a policy like that, the end result would be poor communication between him and his employees. Rather than quietly identifying problems to him, they’d bypass the internal channels and take every grievance to the press. That, in turn, would result in countless unnecessary embarassment to the agency, with no repercussions for the employee. That’s a crappy management problem, not a First Amendment one.

That way, doesn’t everyone walk away happy? Constitution and employees, I should hope that a majority of congresspeople would support government employees who address issues, instead of getting a govt of yes-men. But if they don’t isn’t the correct response to vote those folks out of office? Not to read preferences into the constitution?

This also allows states or counties to create their own whistleblower policies.

I agree with your analysis wholeheartedly. The Court has denied First Amendment protection to a public employee based on the content of his communication on a matter that is of vital public interest. Your example of the Federal Air Marshal may be more apt than you know. For most federal employees, disclosing wrongdoing within the federal government is protected by the Whistleblower Protection Act, which is codified in scattered sections of Title 5, U.S. Code, but the primary provision is 5 U.S.C. 2302(b)(8), which makes it a prohibited personnel action to take or threaten to take a personnel action against an employee in retaliation for a disclosure of information which the employee reasonably believes evidences a violation of law, rule, or regulation, gross mismanagemement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to the public safety.

While there is no doubt as to the coverage of this statute to most federal employees, there may be doubt as to Federal Air Marshals, who are members of the Transportation Security Administration (TSA). Under the Aviation & Transportation Security Act of 2001, Pub. L. No. 107-71, there are a number of questions and issues concerning the degree to which TSA employees come within the jurisdiction of the Merit Systems Protection Board (the successor to the Civil Service Commission), which adjudicates claims of retaliation for whistleblowing by federal employees. See, e.g., Lara v. Department of Homeland Security, 2006 MSPB 31 (Feb. 28, 2006). To my knowledge, the MSPB has never ruled on whether Federal Air Marshals have full coverage under the Whistleblower Protection Act, but I think there’s a real question about it.

Granted, if the employee can make the case that the employer is retaliating only for the public speech, he may still have a case.

Who says “only?” As long as the public, First Amendment-protected speech played a role in the termination/discipline/etc., the aggrieved employee has a case, and Ceballos does not apply. If an employee first raised his concerns internally, and later made them public, the logical inference is that any subsequent discipline would be in retaliation for the latter, not the former (or possibly, for both). I can’t think of any employer who would rather have his employees air their dirty laundry publicly than have them investigated quietly through the appropriate internal channels. Can you? If not, how on earth is an employer going to persuade a jury otherwise?

[By disciplining employees promptly when they raise embarrassing matters of public concern, for one. If employers can provide undisputed evidence that the employee would have been disciplined anyway, for internal speech, a jury will never hear the claim. This will encourage swifter punishment for interal and embarrassing speech on matters of public concern. -- P]