5 ms·

I tend to think Pickering v Board of Education makes the speech protected even if the speaker identifies himself/herself as a government employee. At least, I w

by jarrett 13y ago

I tend to think Pickering v Board of Education makes the speech protected even if the speaker identifies himself/herself as a government employee. At least, I would argue that such self-identification is so crucial to the speaker's message and so valuable to the public as to be protected. 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.

anigbrowl 13y ago
It's easy to think of edge cases where it's a problem though, and then you get into tricky political questions about how to regulate the content of speech. For example, imagine a disgruntled TSA employee pens an article excoriating Muslims and suggesting that they be forbidden to travel (Constitutional impediments to such a policy notwithstanding). This would be very problematic for reasons that I hope are obvious; but all speech were constitutionally protected 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? 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.
- rosser 13y ago
  For example, imagine a disgruntled TSA employee pens an article excoriating Muslims and suggesting that they be forbidden to travel. 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.
  - anigbrowl 13y ago
    I don't agree with your position. 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.

by jarrett 13y ago

anigbrowl 13y ago

It's easy to think of edge cases where it's a problem though, and then you get into tricky political questions about how to regulate the content of speech. For example, imagine a disgruntled TSA employee pens an article excoriating Muslims and suggesting that they be forbidden to travel (Constitutional impediments to such a policy notwithstanding). This would be very problematic for reasons that I hope are obvious; but all speech were constitutionally protected 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? 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.

rosser 13y ago
For example, imagine a disgruntled TSA employee pens an article excoriating Muslims and suggesting that they be forbidden to travel. 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.
- anigbrowl 13y ago
  I don't agree with your position. 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.