Patterico's Pontifications



Filed under: General — Patterico @ 7:10 pm

Hillary will be elected President in 2008.


More on the Gender Issues Raised by the L.A. County Jail Early Release Policy

Filed under: Constitutional Law,Crime,General — Patterico @ 6:46 am

Eugene Volokh has a more detailed analysis of the constitutional questions of gender inequality raised by the selective early release policy at the L.A. County jail (discussed here the other day).

If the policy is unconstitutional due to a disparate impact on women, then:

  • Does the government have to build more bathrooms for women, if building the same number leads to longer lines for women’s restrooms?
  • Is the death penalty unconstitutional because almost no women are executed? What about the entire criminal justice system, which punishes far more men than women?

Anonymous Lawyer Novel: A Review

Filed under: Blogging Matters,Books,General — Patterico @ 6:35 am

I finished my advance copy of the Anonymous Lawyer novel last night. I stayed up until 1 a.m. to finish it, which should give you an idea of whether I enjoyed it.

It’s pretty easy to decide whether you should get this book or not. Go to the Anonymous Lawyer blog and read a few posts. Do these posts make you want to read a lot more along the same lines? If not, skip the book. If your answer is yes, pre-order your copy now.

When I first read the blog, I was so amused by what I saw that I went back into the archives and started from day one, intending to read each and every post on the entire blog. This is the only blog I have ever read that I can say that about.

The book is very similar to the blog. It is entirely in the form of blog posts and e-mails, which makes it a very quick read. It employs the same tone and humor as the blog.

I thought the book was a riot. I read several passages out loud to my wife. I recognized some of the material as recycled blog posts, but not that many. There is a good amount of new material. Also, there is a plot and there are characters, all told in the e-mails and blog posts. It’s a clever device, and it’s interesting to see how author Jeremy Blachman pulls it off.

You have to like the humor — and it helps if you have worked at a large law firm putting in huge numbers of billable hours. But if you like the humor, you’ll love the book. I did.

More on Garcetti v. Ceballos

Filed under: Civil Liberties,Constitutional Law,General — Patterico @ 6:01 am

In discussing Garcetti v. Ceballos, Jack Balkin makes an important point. With the holding of this case, it is now the law that

if [public employees] speak both privately and publicly, they can be fired for their private speech.

In my opinion, this is the main problem with Garcetti v. Ceballos: it allows government retribution for employee speech regarding matters of significant public concern, as long as that speech begins internally, pursuant to official duties. This is true even if the employee ends up going public with his speech because his efforts to resolve the matter internally did not work.

Imagine a responsible whistleblower. It’s not so hard to do. Let’s say we have a federal air marshal who believes that it’s ridiculous that the government makes him wear a suit and tie while performing his duties on a commercial jet. The air marshal knows that wearing such clothing readily identifies him as an air marshal, making him a target for terrorists.

He expresses his concerns in a memo to his superiors. They don’t like his questioning their policies, so they demote him. Then he goes to the press, complaining that red tape and bureaucratic attitudes are tying our hands in the fight against terrorism.

Don’t we want him to try to resolve this matter internally before going to the newspapers? If he is responsibly reporting a serious concern with government, based on his knowledge of government’s inner workings, do we want to allow him to be punished because he tried to resolve the matter internally first?

Yet if his employer can argue that his internal expression of concern was in any way pursuant to his official duties, and that he was punished for that internal speech, then the government is off the hook as far as the First Amendment goes. Lawyers could argue that the air marshal has a duty to ensure safety in the skies. Perversely, precisely because he has that duty, writing memos to promote greater safety in the skies is an act done pursuant to his official duties — making him subject to retaliation.

So the government is allowed to punish the guy for the content of his speech, regarding a matter of vital public concern — and the First Amendment has nothing to do with it.

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. But by acting like a responsible employee, and trying to handle the matter “in-house,” he forfeits any constitutional protection against governmental retaliation based on the content of his speech.

I think this decision will gravely inhibit government employees from reporting problems with government. I think it is rare that a responsible public employee will go straight to the press when confronted with misconduct or other serious concerns with the inner workings of government. In the real world, when a responsible government employee has important information about misconduct at a governmental agency, he is not going to go straight to the newspaper. He is going to try to resolve the problem internally, as Ceballos did.

Often (perhaps usually), the employee’s attempt to do so will be within his job description, as Ceballos’s memo undoubtedly was.

But if his employer resists the efforts to deal with the problem, and, worse, retaliates against the employee based on the content of his speech, then the employee may choose to go public with the information. If the information is of significant public concern, and the employee is speaking the truth, then his public statements would be classic First Amendment speech — the type of speech that we all want to encourage.

Yet, if the employer doesn’t like the employee’s speech, and the employee ever spoke “privately” (i.e. pursuant to his official duties), then the employer can retaliate against the employee when he goes public, by pointing to the “private” job-related speech as the reason for the retaliation. Thus, the government can punish the employee for his speech, as long as it makes clear that it is punishing the employee only for his internal job-related speech.

Granted, if the employee can make the case that the employer is retaliating only for the public speech, he may still have a case. [See UPDATE below for the precise standard.] But, in the real world, the employer is generally not going to be retaliating only for the employee’s public speech. If a government employee (like our air marshal above) starts sounding the alarm about problems at his or related agencies, his employer will probably be 1) genuinely irritated at the employee for his internal speech, and 2) even more irritated at the employee for going public. The government employer will thus usually be able to make the case that they were upset at the employee’s internally expressed grievances. And he will be constitutionally out of luck.

This, to me, is not an intuitively appealing rule. The First Amendment is primarily designed to allow citizens to speak freely about matters of public concern. The workings of government are among the top issues of concern to citizens, and nobody has better knowledge of these workings than government employees.

Yet the Court has created a rule that, in most cases, fails to protect such employees from adverse treatment by the government, based upon the views he has expressed.

That sounds like a First Amendment problem to me. Doesn’t it to you?

P.S. My previous posts on this case are here and here.

P.P.S. The L.A. Times has an interview with Ceballos today, here.

UPDATE: The precise way to articulate what must be shown is this: 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. Mt. Healthy City Board of Ed. v. Doyle, 429 U.S. 274 (1977).

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