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Judge Blackburn to Whistleblower: Shut Up Already

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Say you point out that’s something wrong in your workplace, and you get fired for it. Now say you happen to be a cop or a doctor or a rocket scientist, and the problem you’re pointing out could get somebody killed.

Think you’ve got a constitutional right to speak your mind? Think again.

A peculiar U.S. Supreme Court decision has scuttled a free speech case in Denver that raised grave questions about how transplants are handled at University Hospital. Last year a nurse sued the hospital, claiming she was fired because she reported improper procedures, substandard care and an alleged coverup of a serious violation of heart-transplant rules. But U.S. District Judge Robert Blackburn recently granted the hospital’s motion for summary judgment, ruling that the nurse, Lisa Rohrbough, had no First Amendment protection for her whistleblowing because speaking up about such matters was part of her job duties.

Confused? Same here.

We first reported on this surreal legal twist here, shortly after Rohrbough (stepmother of Columbine victim Danny Rohrbough) and her attorney, ubiquitous constitutional crusader David Lane, filed the lawsuit. A few days after the case was filed, though, the highest court in the land declared that public employees have no constitutional protection for speaking out in the course of their job duties. In other words, public servants doing their jobs don’t have the same free-speech guarantees as private citizens do.

Lane called it “a terrible decision” but hoped Rohrbough’s case might still proceed. But the hospital’s attorneys took the position that the same conduct that got Rohrbough fired – raising questions about short staffing, poor care and a doctor’s decision to transplant a heart intended for one patient into another -- was within the scope of her official duties and thus not protected speech.

Judge Blackburn agreed. “That these matters were also of broader significance to the community…does not alter the fact that plaintiff acted as a nurse, not as a citizen, when she spoke about these issues,” he ruled.

In theory, whistleblowers have other means of relief through state laws – but those laws don’t have the teeth of the U.S. Constitution. And another aspect of the Rohrbough case could have its own chilling effect — Blackburn ordered the plaintiff to pay the hospital’s legal costs. According to her husband Brian, Lisa Rohrbough plans to appeal the decision. –- Alan Prendergast

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