“I’m not trying to tread upon your First Amendment rights,” she said. “All I’m saying is: Couldn’t you have run those First Amendment rights past the legal department first?”
Welcome to modern America.
Welcome to modern America.
http://law2.umkc.edu/faculty/projects/ftrials/conlaw/publice...
I suspect that Garcetti v. Ceballos doesn't invalidate this position. In Garcetti, the issue was statements made pursuant to professional duties. I don't believe a letter to the editor criticizing your employer could be considered an action taken pursuant to your duties.
I'm just speculating, though. I can't be sure a given court would agree with me. So any government employees reading this shouldn't take my word for it.
I'm no expert on the Constitutional law in this area - it just seems like a very obvious can of worms, of the sort that the courts prefer to punt on.
I don't believe a letter to the editor criticizing your employer could be considered an action taken pursuant to your duties.
I think you could easily say you took an oath to the United States as opposed to your immediate supervisor, although in cases where people have made such arguments courts often seem to take the position that one should exhaust one's administrative remedies first - ie make complaints through channels, escalate to appropriate Congressional committees if necessary, etc. etc. Given the purpose of the TSA, national security issues could also come into play but I have no idea how those shake out.
They should be allowed to do that. And any publication willing to try to sell ad space flanking such drivel should be allowed to as well.
Freedom of speech is specifically and ultimately for the speech that you don't like. I find the ideas behind your hypothetical article abhorrent, but I absolutely and unwaveringly think people should be able to say those things. My main motivations for this stance are two-fold:
1. Preventing speech we don't like invites a slippery slope. If today we say you can't write articles excoriating Muslims, what's to stop us from barring editorials espousing atheism tomorrow? Or any religious stance but the current, socially dominant one the day after that? Better to allow distasteful discourse today than to risk dissenting discourse tomorrow.
2. I find it convenient when noxious assholes out themselves as such. It makes my life so much easier when people who think these kinds of things fly their flag loudly and proudly, so I know whom to avoid.
how would you legally distinguish between that critical of the TSA and that critical of some other class of people without privileging one set of political opinions over another?
Easy: you don't. Speech is speech is speech. Allow it all, or risk it all.
Now, a critical caveat here is that we're talking about speech, and not incitement. Expressing an opinion, however vile, should be sacrosanct. Encouraging people who might share your opinion to visit violence (and I don't just mean physical violence) upon the targets of your noisome nonsense is something entirely other. And I think that's a reasonably easy distinction to draw, as well, without privileging some opinions over others.
Look at the balance of harms in this example. On the one side, a TSA employee whose expression of sincere opinion is restrained by his employer, the government. On the other side, millions of innocent people who feel dissuaded from air travel on the grounds of national origin (see below) because they don't believe they'll be properly treated at airports and because they fear assaults , even if only verbal, from passengers emboldened by the slight imprimateur of official support for their prejudice.
(I say national origin rather than religion because most people seem to be in the habit of making judgments based on the former. Post 9/11 people like Sikhs were attacked because they were foreign-seeming and from a part of the world that has a lot of Muslims, even though Sikhism is a wholly different religion. a woman named Fatima Mubarak might be a Christian but most people are going to assume Islamic affiliation based on her name. Likewise, it's easy to imagine or identify people who are Islamic but statistically unlikely to be identified as such. In the aggregate, we're pretty superficial).
You have a balance of harms here, and I think ultimately courts would choose the harm that affects the fewest number of people, especially given the existence of numerous avenues for dissatisfied TSA employees to raise grievances through administrative channels rather than by trying to whip up public sentiment in favor of their political view.
Please note that it's not the speech excoriating someone else that I'm saying should be regulated - it's the publicity by the angry person of their official position with a government agency in connection with that speech, which shI say should be restrainable by the agency. If the TSA agent in this example thinks the agency so wrong-headed, s/he could resign from the TSA and then write things like 'I quit the TSA because they don't recognize the threat posed by Muslims' - to which the TSA could reply 'We are required by law to treat everyone equally and it is our policy to do so, which is why we parted ways with this employee.'
Now I totally agree that it's convenient when 'assholes out themselves as such.' The thing is that when they're in uniform (so to speak) what's convenient to you or me may be intimidating to someone else; things look quite different when you're a spectator rather than the target of someone's bias, and the appearance of official sanction for that bias amplifies the intimidatory effect. I'm saying that the interests of the agency in being seen to serve the public fairly and in accordance with law outweigh the interests of the individual agency employee who feels constrained by the agency's code of conduct.
When we regulate free speech -- in any way whatsoever -- we open ourselves up to greater regulation of free speech. Free speech is a special privilege in that only unrestricted free speech can argue against restrictions on free speech. Once you grant restrictions against free speech, you open yourself up to a position where your speech becomes so restricted that you become unable to even argue why it should be less restricted.
Furthermore I strongly disagree that restrictions on speech should be relative to either the social position of the speaker, or the harms posed by the speaker. If our justification for preventing speech is that the speaker's speech could be mistaken as the official position of some group (in this case the TSA), then this gives us a legitimation to shut down all speech, as we can simply twist the speaker's position as being representative of some group to which they're tenuously related. A woman wants to speak out unpopularly against x? Well, we can claim she represents all women, and her speaking out would sour the position of the public towards women. A black man wants to speak out against unpopular y? Same argument. Jewish? Same argument. And so on. This is why speech is an individual right, regardless of circumstance.
As for the (in my opinion, unpersuasive) argument that the harm caused by speech should be legitimation to close down certain speech, no speech in-and-of itself is harmful. Speech is just speech, and cannot itself be harmful. It is people's reactions to speech which causes harm. Even if we claim certain classes of speech (say, yelling fire) have predictable outcomes that can cause harm, we also have to accept that harmful speech can sometimes be necessary. When the founding fathers spoke out against the tyranny of the British (or so I hear; I'm British!), this lead to a civil war which cost hundreds of thousands of people their lives. Same again when Lincoln spoke out against the separatist south. Same again when Churchill spoke out against the Nazi threat. Yet few would argue the harms caused by these pieces of speech should cause them to be banned, even though these pieces of speech resulted in the deaths of millions.
This means that we cannot be logically consistent when we claim to ban speech based upon harm, so we either have to change our justification (i.e. admit that it's not really harm we're avoiding, but specific types of harm), or admit that we're being illogical in selecting lesser harms (discomfort felt by non-Americans, in your example) as justification to shut down speech, and greater harms (the deaths of millions, as above) as protected speech.
Honestly, free speech is simply too fundamental to both democracy and philosophical/scientific progress to tamper with. No matter what lesser right you put up against it, you'd have a hard time convincing me that it should trump free speech, the right which underlies our very society.
Why is this such a difficult concept to grasp?
Furthermore I strongly disagree that restrictions on speech should be relative to either the social position of the speaker, or the harms posed by the speaker. If our justification for preventing speech is that the speaker's speech could be mistaken as the official position of some group (in this case the TSA), then this gives us a legitimation to shut down all speech, as we can simply twist the speaker's position as being representative of some group to which they're tenuously related. A woman wants to speak out unpopularly against x? Well, we can claim she represents all women, and her speaking out would sour the position of the public towards women. A black man wants to speak out against unpopular y? Same argument. Jewish? Same argument. And so on. This is why speech is an individual right, regardless of circumstance.
No, that's bollocks because employment is a bilateral contractual relationship. I don't choose to be a man nor is the fact of my masculinity subject to the agreement of the male community, therefore it's meaningless for me to say that I speak for all mean by virtue of happening to be one. Someone in a position of authority in an organization by definition stands in an agency relationship to that organization. The very word authority implies an ability to act as the of author of that organization's decisions.
As for the (in my opinion, unpersuasive) argument that the harm caused by speech should be legitimation to close down certain speech
I'm not making any such argument. If you think that, you have wholly misunderstood my position and I apologize for my lack of clarity in explaining.
Your argument proceeds from the assumption that the balance of harms matters. Legally, it does not where political speech is concerned. This is pretty much the closest thing to a legal absolute as our system of laws has.
Restrictions on speech are generally subjected to strict scrutiny. Strict scrutiny is not based on a balance of harms test. Rather, for a restriction to pass strict scrutiny, it must satisfy the following factors:
1. It must be justified by a compelling governmental interest.
2. It must be narrowly tailored to achieve that interest.
3. It must be the least restrictive available means to achieve that interest.
Note that balance of harms doesn't factor anywhere into this analysis. The closest thing is the "compelling interest" test. But "compelling interest" isn't a test that weighs one interest against another. Rather, it simply asks whether the restriction's positive effects, examined on their own, are crucial, essential, or necessary, rather than merely desirable. This is a fairly high bar, by the way.
Getting back to our original question: A restriction on politicized hate speech by government employees would presumably trigger strict scrutiny, largely because of the political nature of the speech. So, does it pass strict scrutiny? Let's go factor by factor.
1. Does the government have a compelling interest in preventing hate speech by employees? No, because preventing such speech isn't crucial, essential, or necessary. It's merely desirable. Lives will not be lost, property will not be destroyed, and national security will not be directly compromised if a government employee engages in hate speech. The expected harm from hate speech by government employees is largely psychological. Further, the psychological damage inflicted by one crackpot will most likely be very small. While it's clearly a bad thing, it's not compelling by strict scrutiny standards. We could stop here, as the restriction has already failed the first test and thus failed strict scrutiny. But let's continue for the sake of the exercise.
2. Is the restriction narrowly tailored? If the interest is the prevention of psychological harm to minorities, and the law restricts that hate speech and nothing else, it's probably narrowly tailored.
3. Is the restriction the least restrictive means? Probably not. One could imagine an alternative solution whereby the government actively and publicly disclaims its employees hate speech. That would be less restrictive, and would probably go a long way toward achieving the goal.
A century ago, you would probably have been right. This speech has some significant bad tendencies that the government has a legitimate interest in regulating. If the government had been responsible in using that power, that might be the test today.
Unfortunately the trouble started in WWI, when sedition prosecutions were brought against individuals for encouraging people not to report for the draft. While the prosecutions were ultimately upheld, they made members of the court nervous. As a result the court, in Schenk v. United States, tightened up the standard a bit, to "clear and present danger" and including the famous bit about shouting fire in a crowded theater and laughing as people are trampled.
I think your hypothetical would be harder to justify under this new standard (in 1917) because it isn't clear that the danger is either clear or present. However, given prosecutions of alleged Communists in the 1920's I think it would stick.
The prosecutions of alleged communism, and the political antics surrounding them (HUAC, etc), eventually lead the courts to conclude that the basis of American democracy required a free marketplace of ideas. This eventually lead to the standard becoming a lot more tight in Yates v. United States (holding that urging people to accept the moral necessity of eventual violent overthrow of the government was protected speech, and not the equivalent of raising an army to accomplish such an end). In essence saying that workers must at some point unite and overthrow the government did not pose a clear or present danger but rather an unclear, future danger.
The danger in this context is not that a sincere opinion will be restrained but that the government will use its force to create apparent consensus for its preferred policies, and therefore deny the people a real voice in the matter. This is a structural, functional problem, and perhaps a less centralized, more local, more responsible and inclusive government might not have somewhere else.
All that aside, you seem equally hung up on whether someone is acting in some capacity as a TSA official or not. I maintain that unless someone specifically and explicitly claims they're speaking in that capacity, we should assume they're speaking as a private party.
I don't think it's the least bit ambiguous whether Mr. Harrington's blog posts — written while he was in the TSA's employ — nor this article, written after, are an official TSA position. Nor is it ambiguous whether your hypothetical anti-Muslim editorial, even were it penned by an active TSA employee — or, for that matter, officer or executive — is or isn't TSA policy. The legal system's notional "reasonable person" would be able to distinguish private speech from government policy in both cases, mooting your argument.
That poses some very interesting questions. If there is no right to a specific mode of travel, but some places can only be reached effectively by plane (say Hawaii) then does placing an American on a no-fly list impact that right to go to Hawaii? Does it matter if that individual is a resident of Hawaii and is thus effectively barred from interstate travel by this?
Internationally things get more complicated. I am not aware of any cases which hold squarely a right for Americans to travel about the world as they please. Certainly bans on spending money travelling to Cuba have been upheld. However what the government clearly cannot do is to take a protected criteria like speech, religion, or political viewpoint and use that as a basis for travel.
If an individual were to say that policy was to dissuade Muslims from travelling, the harm would be that Muslims would get together and sue the government in order to determine the scope of this misbehavior and put a stop to it. There really isn't that much harm when compared to the likely other uses of such a power (silencing discussions, for example, of what Islam means for politics in the US). On the whole disadvantaged groups are protected by bans on hate speech, given what the government has done in the past.
That's an invaluable (and otherwise largely unavailable, or at best, irredeemably subject to spin) contribution to the dialogue we, as a society, should be having about the TSA's form and function. Muzzling him a priori because he happens to have that perspective does disservice to everyone, including the TSA.
So he can speak, just as long as he doesn't provide any verifiable credentials that might actually make him credible?
There is a difference between speaking for the TSA, or any other employer, and merely speaking personally as someone with personal experience of the TSA, or any other employer. It's reasonable to prohibit anyone from falsely claiming to represent someone else when expressing a personal view. As a general rule, I don't think it's reasonable to prevent them from making factually accurate claims about employment that support their own authenticity when speaking personally.
There probably needs to be an exception to that if there really is a genuine reason to avoid identifying an individual as part of a certain organisation for security reasons. However, given the tendency of governments to exaggerate "national security" and similar arguments, it would have to be a pretty compelling case and I would suggest that employees should have to be notified of it in advance so it could be properly challenged. In any case, it's hard to see how any of this would apply to a typical front-line TSA employee.
He can speak, and he can say how he knows what he's talking about--but when he took the job he was put on notice that doing so might jeopardize his employment. (He says so in the article.) He can speak, but he also has to be prepared to take the consequences of speaking.
Perhaps, though given that the employer in this case is the government, we could debate whether or not the employment should be jeopardized in a whistle-blowing case.
Either way, I'm not sure that's what we were talking about. The GGP post suggested that the TSA should be able to stop him from even mentioning their name when expressing his opinion, not just that they should be able to fire him for expressing an opinion incompatible with remaining a TSA employee.
That is precisely the issue. He is using his employer's name to lend credibility to his personal opinion.
It's clear and in context that his account is reflective of his experience and his values. Asking him not to say "TSA" would nullify the very reason for him wishing to speak out and give rise to either a toothless account or one which obviously implicated the TSA because nobody else handles airport security in the US.
As emphatically as I support the article's author's right to his opinion, and to express it, I stop short of agreeing with your position. We absolutely have the right to express any opinion, but speech is not absolutely free.
There's the cliché example of "Yelling 'Fire!' in a crowded theater". That's illegal, and with good reason. A more compelling case of legitimately restricted "speech", however, is incitement to violence. If you're actively encouraging people to commit violence on persons or property, that shit has to stop.
If you self-identify as a government employee, then it is reasonable to assume that someone might take what you say as government policy. Had he not said he was a TSA employee first, there would have been no issue at all.
I disagree. Especially when you are at the bottom of the chain of command.
Would you expect a Starbucks barista, when speaking in an off-hours context, to speak for Starbucks? "I work at starbucks, but I don't think their coffee is particularly good, and my boss is an asshole." No. That's clearly the private opinion and gripes of a grunt. Now, if said barista said that on national TV, sure, they'd get fired. But nobody would be mislead into thinking that the Starbucks official message was "our coffee is bad and our supervisors are assholes"
The expectation that a grunt will stay 'on message' on personal time is... pretty goddamn silly, if you ask me.
I mean, sure, if a grunt goes counter-message at a company that demands slavish obedience, you are going to get fired.
Hell, if you go off-message in a public enough way, and embarrass your bosses enough, especially if you reveal real weaknesses in the system you are a part of, as this person did, you are going to get fired about anywhere. I'm not making moral judgments about that; it's just the way it is.
But, going "off message" on your personal time and embarrassing your bosses, while it might get you fired, is not in any way misleading to the public. Especially when you are just a grunt.
I was just taking issue with this idea that a reasonable person would think that a grunt speaking off-hours was speaking for the corporation or government that employs them.
(I also have pretty strong feelings that complaining about your boss to people who aren't your boss is a reasonable sort of thing to do... and maybe even a fundamental human need. But that's not really relevant to the discussion at hand.)
The speech issue is a real ethical issue. A government employee has to be careful with what and how they say things in public, as people can and will decide to interpret your statement as policy statements. In NY, a DOT engineer was fired because he said something about snow plowing (that wasn't negative) which conflicted with the administrations narrative.
"I think you should vote for Nixon" is entirely different if it's a random person saying that, vs. a police officer who could choose to search you.
Its too much to expect the average person to understand rank structure. Everyone is capable of understanding it, but almost nobody cares because civilian life doesn't often give you a good reason to care about military/government rank structure. Many people see an intimidating looking guy in a uniform and assume he's in charge of a lot of really important stuff.
I was in the military for over a decade, yet to my wife, there were three ranks. Privates, Her Husband (Actually a Sergeant), and the mythical Officer/First Sergeant (Everyone higher ranking than myself would alternately be referred to as First Sergeant or my Commanding Officer, as in, the same person would be referred to as either one, depending on the conversation. I explained the differences to her a thousand times, but she, like many military wives, just didn't seem to care.
Civilians care even less. Most people recognize that a general is the highest authority in the military, but that's about where it ends.
You also have to consider the way that the media often likes to twist a person's words around. You might be speaking as a matter of opinion, but if a news station uses clever editing to make it sound like you are an important person who is declaring an official military position on a subject, it doesn't really matter that its not true, the damage is still done.
While I agree that military rank is complex, I'm pretty sure that most people are very clear that the folks doing the grope and grab at the airport are at the very bottom of the hierarchy.
Of course, I could be wrong, but my impression is that the objection many people have to the grope and grab is at least partially a class thing. Most people see TSA employees as "beneath them"
I believe this is exacerbated by our (fading) sense that air travel is a luxury thing, and that the employees who facilitate said travel ought to kowtow to me, not the other way around.
You'll feel a lot less giving towards TSA the first time you show up two hours in advance of a domestic flight and end up having to sleep the night in an airport because they detained you for additional screening (for no apparent reason other than perhaps not liking your look) long enough to miss the last flight out to your destination.
Don't you agree that a Starbucks barista saying "Our coffee is not good" is a different matter from John Doe saying "Starbucks coffee is not good"?
Well, let's put it this way. I interviewed at Yahoo search, back when Yahoo Search was a thing. I was passing on a question, playing it off as a detail that i would look up. I said something to the effect of "I'd just google it"
Laughter. "we try not to say that here." I got the job.
As a SysAdmin, really? my knowledge of search-engines was probably not any more nuanced than any other technical person. That's probably true of the Starbucks barista, too; I believe that Starbucks uses so-called super-automatic espresso machines, meaning that the machine grinds, tamps and pulls the shot, so a starbucks barista might very well know no more about espresso than a random enthusiast.
I do believe that it is completely reasonable for an employee to have a low opinion of the company they work for.
In fact, I think that only having "yes men" type employees who always parrot the company line can be dangerous; I think this is a big part of why facebook doesn't understand just how creepy the rest of us think they are.
I think that this expectation that employees "work for the mission, not the money" and the other exercises in groupthink that are becoming more popular in "Startup culture" are... kind of dangerous. You are training your employees to conceal their honest feelings, which is certainly bad for your employee, and I believe also bad for the company.
It's not "Orwellian" (the term doesn't make sense here), however what would you say if the TSA fired someone because he was a muslim, for example. I doubt the following:
""You have a First Amendment right to follow any or no religion. You don't have a right to a government job""
> If you self-identify as a government employee, then it is reasonable to assume that someone might take what you say as government policy.
No, that's ridiculous. If someone says, "I work at the TSA, and the official policy is X", then perhaps it's "reasonable". Also, had he not identified himself as a TSA employee, none of what he said would make any sense: he was describing his experiences as a TSA employee.
Actually, that's built directly into the constitution, so the First Amendment doesn't enter into it. http://en.wikipedia.org/wiki/No_Religious_Test_Clause
It just give the government ability to yell "we guarantee freedom of speech" without really giving it.
That's not how it works. Freedom of speech means you can say whatever you want without fear of being prosecuted by the government. And if firing the employee is not prosecuting them, what is?
Well, how about something like:
pros·e·cute (verb) law : to hold a trial against a person who is accused of a crime to see if that person is guilty
-- Merriam-Webster
I realize you probably feel the actual text of the first amendment is needless pedantry, but what it actually says is congress shall pass no law...
But more relevantly, one is allowed to say what one wants in government - one just has to be ready to take responsibility for one' s actions. That is far from not having freedom of speech.
If you become a government employee, do you sacrifice any constitutional rights?
Can there be a clause or contract in any situation that removes your rights as a citizen, or do you cease to be a citizen when employed by the US government?
Military officers in the US are barred from speaking contemptuous words against the President and VP. (article 88 UCMJ). There is a parallel article that applies to enlisted members. Calling the Pres a "fascist pig" is a no-no.
Army regulation 600-20 limits members ability to campaign on behalf of candidates for public office and partisan political causes.
I'm not aware of anything like this that applies to civilian government employees.