I’d like to set forth hypothetical examples of speech by a government employee — me, on a blog. (I stress that these are purely hypothetical.)
Assume in every case that I blog on my own time, using my own computer resources, on a site that says:
The statements made on this web site reflect the personal opinions of the author. They are not made in any official capacity, and do not represent the opinions of the author’s employer.
(This part is not hypothetical; that’s what I do, and I use the disclaimer.)
Now, say that I praise George W. Bush on my blog.
Now imagine that my boss is a regular reader of Kos, and thinks that my conservative opinions reveal me to be (in his eyes) a harebrained lunatic. He fires me. It’s not because of my opinions, he says — rather, I should be precluded from holding a responsible public position like that of Deputy District Attorney, because no clear-thinking person would ever support George W. Bush.
Don’t laugh. I’ve seen almost this exact argument made about me in comments on various sites. Here’s one such example from Hiltzik’s old site.
So, if that’s my boss’s view, can he fire me consistent with the First Amendment?
I have more hypos below. As an intellectual exercise, tell me if you think my employer is prohibited by the First Amendment from punishing me in the following purely hypothetical situations.
Some of these, I think, would clearly be protected speech under the First Amendment. Some of them clearly would not be — even if they weren’t made pursuant to my job duties — because they would be so disruptive to my employment.
And some, in my opinion, fall into a gray area.
Do you agree that some of these are acceptable and some aren’t? And how would you separate the acceptable actions from the unacceptable ones? Would you (gasp!) employ a balancing test? Or would you just allow me to be fired for any of these?
Here are the hypotheticals: