Perhaps you’ve heard in recent days of the extent to which Florida’s government has limited public health data about the COVID-19 pandemic at the expense of the health of the state’s residents. Indeed, Florida’s government, under the leadership of Gov. Ron DeSantis, has provided an object lesson during this pandemic in the how both whistleblower protection statutes and the First Amendment fail to provide adequate protection to government employees who want to blow the whistle.
Over the past several months, the DeSantis administration has engaged in a variety of stratagems to suppress truthful information and disseminate falsehoods about the pandemic. Yet, save for Rebekah Jones—who says she was sacked last May as the Department of Health’s Geographic Information System manager for refusing to manipulate the Sunshine State’s COVID case numbers and is now under state investigation over messages she sent urging others to speak out—few, if any, state employees have stepped forward as whistleblowers. Perhaps most disturbing: For reasons that have not yet been explained, starting on October 24, 2020, and continuing through the November 3 general election, the state ceased including long-backlogged COVID-related deaths in its daily death counts. The state resumed including these numbers on a consistent basis on November 17—two weeks after the national election. Thus, for over three weeks, the Sunshine State systematically under-reported COVID deaths in a way that made the numbers look rosier than they actually were.
The DeSantis administration’s efforts to accentuate the positive and eliminate the negative, were not limited to significantly under-reporting the state’s COVID deaths: They extended to suppressing data regarding COVID spread in public institutions such as public schools, hospitals, and prisons. Moreover, in September, DeSantis imposed a code of silence on state health department employees in an effort to minimize the public’s appreciation of the pandemic’s risks. The department went silent on social media from September to November regarding the mortal risks associated with COVID—but continued to post about anodyne topics such as flu vaccinations, the risk of lead poisoning, and the benefits of regular hearing tests. In addition, county health department spokespeople were prohibited from speaking out about the COVID epidemic—at least until after the November 3 election. So too, a state COVID task force organized by Florida’s Surgeon General, Dr. Scott Rivkees, met a few times this spring and then quietly disappeared into oblivion.
Florida’s state government owed its residents accurate, truthful, and timely information about the risk that COVID-19 presented to the public’s health. However, the state government instead worked to minimize the danger that the virus presented to the state’s population. Yet, since May, no one within the state government has stepped forward to call foul on these efforts.
In May, Jones, the state employee responsible for maintaining Florida’s COVID case website, says she refused to manipulate the numbers (despite being told to do so). After she was fired, she built her own COVID website and continued to aggregate data on COVID cases in the Sunshine State. Jones has filed a whistleblower complaint under a state statute that conveys limited protection on state employees who blow the whistle. To date her complaint has gone nowhere. Earlier this month, the Florida Department of Law Enforcement raided her home, agents’ guns drawn, and seized her smart phone, computer, and flash drives—ostensibly because Jones had used the state’s employee communications system to send a text message to Department of Health employees urging them to “speak out before it’s too late.”
It is not difficult to figure out why employees working in Florida’s Department of Health would choose a path of prudent silence.
Florida state law, like federal law, does not provide robust protection to whistleblowers who share confidential state government information with the public. Like most statutes that protect whistleblowers, including the federal Whistleblower Protection Act, a Florida employee must respect a government agency’s chain of command and report concerns either internally or to a law enforcement agency in order to be protected. What’s more, such laws do not immunize government employees from potential liability for breaching laws and regulations that restrict the unauthorized release of information within the government’s possession.
What about the First Amendment? After all, the U.S. prides itself on maintaining the broadest constitutional free speech guarantees in the world.
Unfortunately, First Amendment protection for a whistleblowing government employee—at any level of government—is both uncertain and weak.
To be protected at all, a government employee’s speech must involve a matter of public concern and must not fall within the scope of the employee’s official workplace duties. For county-level Department of Health employees, whose job duties include providing health information to the general public, any speech related to the COVID pandemic arguably would fall within the scope of their employment—which means that employees are entirely unprotected by the First Amendment if they speak out about the governor’s code of silence regarding COVID. This legal result flows directly from a very unfortunate First Amendment precedent, Garcetti v. Ceballos, which the Roberts Court handed down in 2006. Garcetti creates a robust chilling effect on government employees blowing the whistle if the information relates in any conceivable way to their work—the area in which most potential whistleblowers are apt to possess important, but confidential, information. The Garcetti rule thus creates a serious “Catch-22” that encourages government employees to hold their tongues rather than warn the public about serious government misconduct.
Even if speech about a matter of public concern clearly falls outside a government employee’s official responsibilities, the First Amendment provides only very modest protection. Under Pickering v. Board of Education, decided in 1968, a government employee’s speech about a matter of public concern enjoys First Amendment protection only if the public value of the speech exceeds the risk of disruption that the employee’s continued presence in the government’s workplace might cause. This approach effectively permits disgruntled co-workers to justify the discharge of a whistleblower; the more egregious and embarrassing a government employee’s public disclosures, the more likely that the person’s continued presence will be disruptive to the government workplace.
In sum, First Amendment jurisprudence stacks the deck strongly in favor of silence over speech. A government employee must guess about whether her speech is sufficiently job-related to be utterly unprotected under Garcetti; even if she can clear this legal hurdle, she must still prevail under a balancing test that empowers co-workers to exercise a heckler’s veto. When the First Amendment affords inadequate or uncertain protection, would-be speakers will self-censor.
Though it is unlikely, the federal courts can and should fix this problem by interpreting the First Amendment to provide targeted and robust protection to government employees who engage in whistleblowing speech. The value and importance of information to the public—and the probability of the information coming to light in a timely fashion absent a government employee blowing the whistle—should play an integral role in the relevant constitutional analysis.
The deafening silence of Florida public health officials in the face of a concerted, ongoing campaign by DeSantis to conceal the truth about the state’s COVID crisis demonstrates with crystal clarity that our current approach just isn’t working. If we want government employees to blow the whistle on serious government misconduct—including, for example, an organized government effort to deceive voters about an ongoing pandemic by disseminating incomplete or even patently false information—then we must afford them sufficient legal cover to make doing so possible. Absent such legal reform, rational government employees will follow the example of Florida’s public health employees—and reflexively choose silence over speech.
Florida’s residents deserved better.
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