Can I Get Fired for Blogging About . . .?
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:
Assume that, on my blog:
- I criticize the coach of the Clippers.
- I criticize the President of the United States.
- I criticize an upcoming state proposition relating to criminal law, which my boss also opposes — but he punishes me because he feels it’s inappropriate for me to be speaking in public about it.
- I criticize an upcoming state proposition relating to criminal law, which my boss supports — and he punishes me because he’s mad at me for opposing it publicly.
- In the past, I criticized an upcoming state proposition relating to criminal law, which my boss at the time also opposed. However, the proposition has since passed, and a new D.A. has been elected who supported it — and he’s mad at me for having opposed it in the past.
- I praise a policy of my boss’s — and he wishes to punish me for discussing policy publicly at all.
- I criticize a policy of my boss’s on general grounds.
- I criticize a policy of my boss’s on specific grounds, using specific examples to show why it is a bad policy.
- I criticize a policy of my boss’s because I am running against him for the position of D.A. [Ha! This example shows how wildly hypothetical these examples are. This will never, ever happen.]
- I reveal a disagreement between myself and my supervisors as to the handling of a specific case.
- I write a post about a trial I am doing, mocking the judge and defense counsel without naming them.
- I write a post about a trial I am doing, discussing evidence that the jury hasn’t gotten to hear because it has been suppressed. I name the defendant, whom I pronounce “guilty,” the defense attorney, whom I pronounce a “jerk,” and the judge, whom I pronounce an “idiot.”
Now, contrary to the cartoonish view that some of you have of my position on these issues, I recognize the fact that some speech by a government employee is a proper subject of discipline. For example, if I were to engage in the conduct described in the last example, I should be disciplined, and probably fired. It would be outrageous behavior and would totally interfere with my job performance.
For this reason, I try to be pretty circumspect about posting about my job. I censor myself more than I probably need to. And you miss out on a lot of very interesting stories as a result.
In fact, I think this blog could get three times the traffic, and would be a lot more interesting and informative, if I felt I could be totally forthcoming about things that happen on my job on a daily basis. You’d get a real insight into what prosecuting is like; what some of the problems with the system are; and what judges to vote for and against.
But I can’t be totally forthcoming. I have to be careful.
And I am.
Still, I should at least be able to blog about the freaking Clippers, right?
Well, you know, my boss could argue that even mocking the Clippers’ coach could interfere with my job duties. “If you try cases, some of your jurors might be Clippers fans who love the coach,” he could argue. “If they learn that you have criticized the Clippers’ coach, they might hold it against you and vote not guilty.”
I think that’s nonsense, and I’d like to think a judge would agree — just as a judge would agree with a decision to fire me if I went off the deep end and started mocking people I was in trial with.
But in the gray area, this stuff isn’t always clear-cut.
Yet to some of you, it is: I get no protection whatever.
In your view, should I forfeit any right to speak publicly without fear of government retribution — even about the Clippers — when I take a government job?
Is even raising these issues in this post, on a hypothetical basis, a firing offense?
P.S. Long-time readers know that I spent considerable energy crusading against Proposition 66, the proposition to gut the Three Strikes law. I know that a lot of you felt that I performed a public service by sharing my thoughts.
Could I be fired for that series of posts?
DISCLAIMER: The preceding blog post was not written pursuant to my official duties as a Deputy District Attorney. In fact, I’d better add that bit to the general disclaimer on the sidebar, huh?
No one is asking you to “forfeit” anything. What we are saying is that you should not acquire any new, special right to speak publicly without fear of employer retribution – the same employer retribution the rest of us face every day – solely because your employer also happens to be a government.
Xrlq (f52b4f) — 6/6/2006 @ 6:39 amI believe the first five are all acceptable issues for you to discuss as a private citizen.
Six through nine are gray areas.
The last three are certainly inapppropriate for you to discuss … and are worthy of disciplinary action.
aunursa (c655af) — 6/6/2006 @ 6:41 amSo how would you handle the gray areas?
Patterico (50c3cd) — 6/6/2006 @ 6:42 amXrlq,
Your argument is valid, but it’s an argument from one point of view. There is another, which I discuss in this comment — and the argument continues downthread (though I am about to go to work, so it will soon stop until about 5 p.m.)
The basic idea is that I give up more as a public employee in being unable to talk about matters of government than you do in being able to talk about matters of whatever it is that you do. Because government is of greater public concern. Not that what you do isn’t — but it is of less public concern. The workings of government are almost always of more public concern than the workings of private industry. You can come back with counterexamples, of course — but the general statement is still true, I think.
Patterico (50c3cd) — 6/6/2006 @ 6:46 amFor example, you can say that the workings of Microsoft and Enron are more important than those of City Hall or the local D.A., and you might be right. But that would be an invalid comparison, because of the difference in size and scale.
You should compare Microsoft to the federal government, and City Hall to some local business or law firm. When you look at that, and consider what people discuss, what makes the paper, etc.: the workings of government win hands down as a matter of public concern.
We don’t cover what Bill Gates does every day with a contingent of reporters. We do that with Bush.
Patterico (50c3cd) — 6/6/2006 @ 6:49 amYes, but you don’t work for Bush, do you? Why should your criticism of a branch of government you don’t work for be shielded any more than my criticism of that same branch of government that I also don’t work for?
Xrlq (f52b4f) — 6/6/2006 @ 6:58 amWhy should my criticism of a branch I do work for be shielded any less than one you don’t?
It’s all how you look at it. You look at it as freedom from retaliation at work, and say I have more of that. I look at it as freedom to criticize the government, and I say I have less. At least with respect to matters I deal with, I have less of the latter than you.
Patterico (50c3cd) — 6/6/2006 @ 7:10 amIf we are still talking about “what the law should be” (but basic precedent also supports my position): You make it easy by limiting it to your blogging. Any action against you would be subject to strict scrutiny and your boss would have to demonstrate an overwhelming governmental interest for punishing your speech. He could do it in the last three examples. In my opinion, not in any of the others. In my (figurative) courtroom, your boss’s case would be weakest in the fourth from last example. There are political bosses in the news right now, some on trial and some already in jail for using government resources to punish or reward political activity by government workers.
nk (06f5d0) — 6/6/2006 @ 7:12 amWhy should my criticism of a branch I do work for be shielded any less than one you dont?
Because of your access to inside information? I didn’t dig through the other posts you’ve made on this so if you’ve covered that I apologize.
[I actually think my speech *should* be more restricted. See my latest post. I was just making a rhetorical point — probably not very effectively. — P]
IANAL, but I am beginning to see why you see the ruling the way you do. It seems to me a valid concern.
I’ve often wondered about this regarding your blogging. It seems a bold thing to do in the political environment you are in and the position you hold. Even if your current boss or supervisor or whatever is OK with it the risk that you would be subject to retaliation has always been obvious to me, if not now then at some future point.
Staying anonymous would have been my choice were I you.
[Too much blackmail potential. It’s better this way. I just pretend my boss is reading everything I say. — P]
Dwilkers (a1687a) — 6/6/2006 @ 7:59 amThe “not blogging about what you’re currently handling/litigating” and “not blogging about current clients” is why my blog is so dead. If I could share some of the stories…. 😉
Lysander (b9a564) — 6/6/2006 @ 8:52 amThe solution is obvious: become so fabulously wealthy that you don’t have to work for anyone else.
Dana (3e4784) — 6/6/2006 @ 8:59 amI “say” you have more of that? No. You do have more of that. Admit as much, or explain why you think you don’t.
As I explained more fully in a private email (Patterico knows what industry I work in, but I’m not keen on telling the world that), I’m not sure that’s true. If I piss off the people who regulate my company, it will have repercussions for me – possibly worse than if I had insulted my own boss instead. Even for those working in industries with little or government contact, they’re still going to get inside information on matters of public interest, which the public at large could benefit from. But no matter how newsworthy that information may be, they can’t divulge their First Amendment-protected information without risking their livelihood, but you can. I simply do not see any way a rule like that can be fair or rational. It’s the law, of course, but only because judges say so.
Xrlq (ec68d8) — 6/6/2006 @ 9:48 amxrlq’s argument is invalid. he conveniently overlooks the fact that the district attorney of los angeles is a state actor, and the restraints in the bill of rights generally apply only to state actors. that’s why public employees have greater rights against employer retaliation than private employees.
assistant devil's advocate (58d5ec) — 6/6/2006 @ 9:52 amADA, congratulations on your mastery of the obvious. Now, perhaps you’d care to try your hand at something a little less obvious: actors aside, is the administrative act of hiring and firing someone a state action? Here’s a free clue: Patterico’s a state actor, too, but that doesn’t mean any commenter he bans has a First Amendment claim.
Xrlq (ec68d8) — 6/6/2006 @ 10:19 amassistant devil’s advocate, you are missing the point of xrlq’s example. A state actor is pressuring a private actor to retaliate against an employee. Is this ok? Here is a real world example.
James B. Shearer (fc887e) — 6/6/2006 @ 10:21 amP,
I agree with your governing principle, as set out in comment 4 above:
I am as unhappy as the next fellow with balancing tests and “three-part tests,” and “totality of the circumstances” tests, because they tend to let judges act on their personal preferences. But I don’t see any practical way to protect First Amendment principles while protecting the government’s interests as an employer without doing something that resembles the Pickering balancing test.
Tim K (7e41e8) — 6/6/2006 @ 12:40 pmApplying a balancing test to your hypotheticals, I think you should get protection for the first 5, not get protection for the last 5, and I could see the middle ones going either way.
Tim K. #16,
I disagree with a balancing test for “content” as opposed to a balancing test for “time, place and manner”. If I choose to play “Amazing Grace” on my bagpipes (and avoid getting lynched by my neighbors) the police could reasonably ask me to play during the day, on my own property, balancing the right to express myself with my neighbors’ rights to have supper in peace, go to sleep and enjoy their property.
When it comes to content, speech is either harmful enough so that the state has an overwhelming interest in suppressing it or it isn’t. It is not a balancing test — it is a kindling point. I do not see balancing the interest of a pedophile to see explicit photographs of children; or to ask a serving soldier to frag his officers; or to publish the plans for a hydrogen bomb. From the other side, the government cannot balance whether I read Hammett or Chandler; whether I play “Amazing Grace” or “Danny Boy”; or whether I am for or against the Iraq War. It is, properly, a bright line test.
nk (4d4a9d) — 6/6/2006 @ 1:05 pmNow that I have responded to your hypotheticals, I would like to pose a real-life situation that got a lot of press in Washington, D.C., and get your and your readers’ reaction.
Until her termination from employment, Teresa Chambers was the Chief of the U.S. Park Police, a federal agency under the aegis of the Department of the Interior. In an interview with a reporter for the Washington Post concerning the effect of 9/11 on her organization and its deployment of resources, the appellant told the reporter that: (1) Traffic accidents had increased on the Baltimore-Washington Parkway; (2) the Parkway now often had two officers on patrol instead of the recommended four; (3) there were “not enough of us to go around to protect green spaces anymore”; (4) she hoped to have a combination of two guards and two officers at the monuments; and (5) her agency needed $8 million more per year to meet its needs. The Post published its story on December 2, 2002. Based largely on the comments Chambers made to the Post reporter, the Park Police terminated her employment based on charges of making inappropriate public remarks regarding security on the metropolitan Washington areas protected by the Park Police; and improperly disclosing budget deliberations. (There were other charges, but assume for the sake of argument that these were not important elements in the decision to terminate Chambers’ employment.)
On appeal to the Merit Systems Protection Board, which has jurisdiction over the termination of federal employees, Chambers asserted that her statements to the Post’s reporter were protected by the First Amendment and by the Whistleblower Protection Act, which makes it a prohibited personnel practice for a federal agency to retaliate against an employee for disclosing what she reasonably believes is evidence of a substantial and specific danger to the public safety. The administrative judge assigned to her case upheld the charges of misconduct against Chambers, found that she had failed to establish either of her affirmative defenses, and sustained her termination. The case is presently under review by the 3 Members of the Merit Systems Protection Board.
You can read more about the case at a website set up by Chambers’ supporters.
Tim K (7e41e8) — 6/6/2006 @ 1:13 pmI guess it would depend on if you were discussing a subject pertinent with your employment in violation of established policy regarding the release of information. If you violate policy by reveling information without authorization, then you have no first amendment protection and you could be fired. The first amendment doesn’t guarantee you a right to continued employment after violating the policies of those who employ you, no mater what the circumstances are that led to the dismissal.
Ray (be81f9) — 6/6/2006 @ 1:19 pm(Note: The following are my opinions and mine alone. They do not represent any legal opinion or government position.)
That’s apples and basketballs – it aint the size that matters, it’s the nature of the beast. No government employee in the US is authorized to do anything absent a chartering document (at the fed level it’s the constitution) and, if necessary, specifying laws, rules, procedures and policies. All of these are based on a heirarchy of authority. For the feds, with which I am most familiar, it is the Constitution, laws based on the Constitution, federal regulations based either on Constitutional authority directly or on laws, or policies put in place by laws or agencies which are authorized by law or the Constitution. This is all based on the concept, embodied specifically in the Tenth Amendment, that all power to govern under the constitution comes not from the government but from the people. The result is that, as I mentioned in an earlier comment several days ago, a government employee fundamentally constrained, except where he or she is expressly empowered. This is just the opposite to what we as citizens enjoy – we can demand, “show me where it says I can’t…” No government employee has that ability. They must be able to “show where it says I can..” to be able to do something.
The tie-in to this discussion is that you, Mr. Paterico, would best serve yourself by not aluding to your status as a government employee. If you don’t do that, you have at least set aside the risk of appearing to speak about information not your own to reveal (anything work related), or of appearing to represent a government position without the authority to do so. It isn’t just what you know about, but also what you appear to represent.
Enron and Microsoft are not government entities. They don’t have that “public trust” issue to worry about.
Steve G. (feb53c) — 6/6/2006 @ 1:28 pmTim K., #18:
Based on your statement of facts, she has a First Amendment defense. I see no overwhelming governmental interest which needed to be protected. If this lady can be fired under the facts you have posted then the President can be impeached for complaining that the Congrees has not appropriated enough for defense.
nk (bfc26a) — 6/6/2006 @ 1:54 pmI like the doctrine of at-will employment. If governments were to adopt it we wouldn’t be saddled with permanent civil servants. Hard on some, but generally good for the rest of us non-government regulatees.
Tom (a27496) — 6/6/2006 @ 8:45 pmThe solution is obvious: become so fabulously wealthy that you don’t have to work for anyone else.
Hmmm. Looks like you need to hit the PayPal button more — or bring in more readers so I can charge more for the ads.
Patterico (50c3cd) — 6/6/2006 @ 9:04 pmnk says:
When it comes to content, speech is either harmful enough so that the state has an overwhelming interest in suppressing it or it isn’t.
Hmmmm. Contrast these two hypothetical examples:
“I refuse to say anything good about the corrupt Bush Administration.” — nk
“I refuse to say anything good about the corrupt Bush Administration.” — Tony Snow
Same speech. Do you see a difference there? Can Bush retaliate against nk? How about against Tony Snow?
Patterico (50c3cd) — 6/6/2006 @ 9:09 pmSteve G. says:
The tie-in to this discussion is that you, Mr. Paterico, would best serve yourself by not aluding to your status as a government employee.
Too late.
Patterico (50c3cd) — 6/6/2006 @ 9:10 pmI “say” you have more of that? No. You do have more of that. Admit as much, or explain why you think you don’t.
I admit it; I was drawing a parallel. I also think, for reasons I have explained, that I have less of a right to criticize government than you do.
As I explained more fully in a private email (Patterico knows what industry I work in, but I’m not keen on telling the world that), I’m not sure that’s true. If I piss off the people who regulate my company, it will have repercussions for me – possibly worse than if I had insulted my own boss instead.
But you miss my point, completely. My point was not that you might piss off your bosses by speaking out about them. My point is that speaking out about *government* is more important, because *government* is of greater public concern. And I have less of a right to speak about government (at least my little corner of it) than you do. Even though I know more about it.
That was my point.
Patterico (50c3cd) — 6/6/2006 @ 9:17 pmPaterrico, your Comment #24:
In the case of Tony Snow, if there is a First Amendment implication at all, I see a time/place/manner issue — at least for the time that he is the President’s press secretary, he is constrained to say good things about the President. Can we, as a minimum say, that he has contracted for certain restrictions on his First Amendment freedom in exchange for his position and violation of his contract will result in its termination? Not, strictly speaking, retaliation — just a deal that went bad.
I also see a distinction between pure civil servants and confidential employees. Those who owe their boss a fiduciary duty as well as a day’s work. So for example, the sheriff who cannot retaliate against an ordinary street cop who is running against him in the election could legally retaliate if it were his First Deputy or Undersheriff at least to the extent of demoting him out of his exempt rank and back to his civil service rank.
nk (57e995) — 6/7/2006 @ 4:35 amP.S. I hesitated to even recognize a First Amendment right as to Tony Snow in my comment #27, because not all speech is necessarily First Amendment speech. For those people who are paid to say exactly the right thing at the right time, it is only on the job behavior. Can the President refuse to hire Yoyo Ma to play at a White House dinner because the President wants to hear “Summertime” and Yoyo Ma insists that he will play “Bess You Is My Woman Now”?
nk (d5dd10) — 6/7/2006 @ 4:46 amOne aspect of the Garcetti v. Ceballos decision that I think has gotten insufficient attention is the fear expressed by Justice Kennedy that using the Pickering balancing test when an employee is speaking pursuant to his official duties would unduly intrude the courts into the workplace:
Citing this language in a Washington Post Column, George Will said that the 9th Circuit’s approach would lead to a “flood” of judicial intervention in the conduct of governmental operations.
I submit that the concern that applying the Pickering balancing test to a Ceballos-like situation would lead to a flood of such cases in the courts is unwarranted. If this concern were valid, you would expect to have seen federal employees raise a “flood” of First Amendment claims in the forum they already have to contest disciplinary actions –the Merit Systems Protection Board. Almost all federal employees have a statutory right to file appeals to the MSPB challenging such actions, and they can interpose any affirmative defenses they deem appropriate, including discrimination and violations of Constitutional rights. In the 26-year history of the MSPB’s existence, I would guesstimate that it has issued around 15,000 published decisions. I did a Westlaw search of that entire database (FLB-MSPB), and the phrase “First Amendment” was contained in a grand total of 75 decisions. In none of those decisions did the authors themselves (a Chairman, Vice Chairman, and Member, appointed by the President, act as appellate judges) make a finding of a First Amendment violation by a government agency. In 3 instances, the MSPB affirmed the decision of an administrative (trial level) judge who had found a First Amendment violation. In 2 instances, the MSPB affirmed the action of the Office of Special Counsel, which had had initiated a disciplinary action against a government agency or official for violating an employee’s First Amendment rights.
It might be argued that federal employees have foregone claims of First Amendment violations, instead choosing to rely on the Whistleblower Protection Act. But according to an article in a Congressional Quarterly publication, federal whistleblowers have been remarkably unsuccessful. According to the article, of the 120 Federal Circuit rulings on the merits of whistleblower appeals between 1994 and 2005, only one was decided in favor of the whistleblower. (The Court of Appeals for the Federal Circuit has exclusive jurisdiction over decisions of the Merit Systems Protection Board.) And the article states that, of the 52 whistleblowers who took their cases to the MSPB from 1999 to March 2006, only two prevailed.
Tim K (7e41e8) — 6/7/2006 @ 9:50 am@xrlq:
assistant devil's advocate (9746e0) — 6/7/2006 @ 9:51 am“is the administrative act of hiring and firing someone a state action?”
i believe that it is.
here’s a free clue back at ya: patterico is a state actor when he’s in his office downtown or in court. he’s not a state actor when he’s updating his blog poolside on his treo, or when he’s in the john, and there are no constitutional restraints operating on him in these instances.
@james b. shearer:
the man in your example worked for raytheon, not the defense department. it is regrettable that he was fired for offering his honest opinion as a citizen about the merits of a smaller navy versus a larger navy, but he offered it on raytheon’s nickel. it would be virtually impossible to prove a level of coercion so rigorous that raytheon could be viewed as a sockpuppet with no independent volition, entirely controlled by the navy secretary, so i believe the district court properly dismissed his suit. yes, defense procurement is an ugly milieu, a whole lot worse than a sausage factory.
ADA – I think there’s a fundamental point that it is the act which is a state action, not the actor.
I spent most of yesterday as an agent of the state. When I was on duty, in a polling place, my actions were state actions; when I took my break and went to get lunch, my actions were not state actions.
In that sense, referring to ‘state actors’ is misleading; the reference should be to ‘state actions’.
That isn’t dispositive of the question “is firing an employee a state action”, of course.
aphrael (e0cdc9) — 6/7/2006 @ 9:57 amassistant devil’s advocate, actually Korb claimed he offered his opinion on his own time. I don’t see why Korb should be protected (by the First Amendment) if he works for the defense department but not if he works for a defense contractor like Raytheon.
James B. Shearer (fc887e) — 6/7/2006 @ 11:43 amProperly interpreted, this has nothing to do with the 1st Amendment. As improperly interpreted by the politicians on the Supreme Court, this stuff is controlled by our masters in robes.
PrestoPundit (9c6332) — 6/7/2006 @ 2:33 pm