What is Enlightenment when the state is schizophrenic? It’s The Jewish Question!

by Corey Robin on April 29, 2014

The New York Times reports on a complicated Supreme Court case involving the First Amendment rights of a public employee in Alabama (h/t Mark Ames). The case boils down to this: Edward Lane, a state employee, was subpoenaed to testify at a federal trial about the corruption of another state employee. As a result of his testimony, Lane was fired by his boss. Lane claims that his First Amendment rights were violated; the lower courts have ruled against him. Now the Supreme Court is considering the case.

But this in the Times report is what caught my eye:

The federal appeals court in Atlanta said it was unnecessary to decide who was right because public employees have no First Amendment protections in any event for statements they make as part of their official duties.


Since “the record fails to establish that Lane testified as a citizen on a matter of public concern,” the appeals court said in an unsigned opinion, “he cannot state a claim for retaliation under the First Amendment.”


While it seems that the Supreme Court intends to uphold the claim that employees like Lane do have such First Amendment rights (though it’s not clear whether the Court will uphold the claim that Lane himself had such a right at the time of his testimony, or at least that it was a “clearly established” right at that time), I’m struck by this disjuncture between the First Amendment rights one is said to have as a citizen versus the First Amendment rights one does not have as an employee of the government. The federal appeals court puts the contrast clearly:

 

Although the district court couched its decision in terms of qualified immunity, it determined that Lane’s speech was made pursuant to his official duties as CITY’s Director, not as a citizen on a matter of public concern. We reach the same conclusion.



To establish a claim of retaliation for protected speech under the First Amendment, a public employee must show, among other things, that he “spoke as a citizen on a matter of public concern.” See Garcetti v. Ceballos, 126 S.Ct. 1951, 1958 (2006) (a decision further restricting public employees’ protected speech). A government employee whose speech is made pursuant to his official duties is not speaking as citizen. See id. at 1960; Battle v. Bd. of Regents, 468 F.3d 755, 760 (11th Cir. 2006). Even if an employee was not required to make the speech as part of his official duties, he enjoys no First Amendment protection if his speech “owes its existence to [the] employee’s professional responsibilities” and is “a product that ‘the employer itself has commissioned or created’”. See Abdur-Rahman v. Walker, 567 F.3d 1278, 1286 (11th Cir. 2009)


I’ve reported on this blog many a time about the absence of First Amendment protections for workers in the private sector. And though I’ve talked less about this, some of that also holds true for workers in the public sector.

But what strikes me about this case is how the state’s investment in maintaining the hierarchical relationship of employer to employee (or, at least, its investment in not extending basic constitutional rights to the employee) creates a schizophrenia within the state. On the one hand, the state compels Lane to testify at a federal trial about the corruption of a public employee because, presumably, the state has a vested interest in that testimony; on the other hand, the state does not believe its own constitutional protections protect Lane when he performs what the state compels him to perform. As the federal appeals court puts it:

That Lane testified about his official activities pursuant to a subpoena and in the litigation context, in and of itself, does not bring Lane’s speech within the protection of the First Amendment.


According to the Times, even Chief Justice Roberts seemed to think this was a bridge too far:

Chief Justice John G. Roberts Jr. appeared sympathetic to Mr. Lane. “What is he supposed to do?” he asked Mark T. Waggoner, a lawyer for Mr. Franks [the boss who fired Lane]. If Mr. Lane testified truthfully, the chief justice said, he could be fired. If he lied or failed to appear, he could be punished.


Mr. Waggoner said that he “would never suggest that anybody not comply with a subpoena, comply with an investigation or testify truthfully.”


The chief justice responded, “But you are suggesting he can be fired if he does it.”


The whole distinction between the freedom we enjoy as citizens versus the non-freedom we suffer as private individuals (albeit individuals employed by the government) reminds me of Kant’s essay “What is Enlightenment?” Attempting to delineate the various uses and imports of reason, Kant make a sharp distinction between the importance and protection of reason in the public sphere and the absence of that protection in the private sphere. More specifically, he makes a distinction between the public use of reason and the private use of reason.

For enlightenment of this kind, all that is needed is freedom. And the freedom in question is the most innocuous form of all—freedom to make public use of one’s reason in all matters. But I hear on all sides the cry: Don’t argue!The officer says: Don’t argue, get on parade! The tax official: Don’t’ argue, pay! The clergyman: Don’t argue, believe!…All this means restrictions on freedom everywhere. But which sort of restriction prevents enlightenment, and which, instead of hindering it, can actually promote it? I reply: The public use of man’s reason must always be free, and it alone can bring about enlightenment among men; the private use of reason may quite often be very narrowly restricted, however, without undue hindrance to the progress of enlightenment. But by the public use of one’s own reason I mean that use which anyone may make of it as a man of learning addressing the entire reading public. What I term the private use of reason is that which a person may make of it in a particular civil post or office with which he is entrusted.


In other words, rather than distinguishing between institutional spheres of public versus private, we might say that Kant is distinguishing between our different orientations of mind. When we reason publicly, we are thinking of the public; when we reason privately, we are thinking about narrower matters. Regardless of where we are (though I suspect Kant believes that where we are matters a great deal).

But even if we adopt that more generous reading, one could make the case that the judges on the federal appeals court are acting like good Kantians. As they write:

Although not dispositive, we consider it pertinent that the subject matter of Lane’s testimony touched only on acts he performed as part of his official duties. See Abdur-Rahman, 567 F.3d at 1282. As in Morris, nothing evidences that Lane testified at Schmitz’s trial “primarily in [his] role as a citizen” or that his testimony was an attempt to comment publicly on CITY’s internal operations.


In other words, if Lane had been speaking out or to the public about taxes, say, or even about government corruption, his First Amendment rights might have come into play (the same, of course, cannot be said if he were an employee in the private sector). But because he was speaking about matters pertaining and pursuant to his job, his First Amendment rights are irrelevant. Even though the matters he was speaking of were of vital interest to the government and the public. The fact that he was speaking as a job-holder about his job rather than as a citizen about public issues is what matters.

This distinction, of course, was precisely what Marx was targeting in his essay “On the Jewish Question.” Thanks to Piketty, Marx the economist is back in the news. But before he turned to economics, Marx was a political theorist of the disjunctures the modern state creates between our emancipated lives as public citizens and our dominated lives as private men and women. Though he was mostly focused in “On the Jewish Question” on the question of religion (and sometimes in yucky ways), the distinctions he drew there apply more generally to the divisions between private man—residing in “the sphere of human needs, labour, private interests and civil law”—and “political man,” the citizen who “is only abstract, artificial man, man as an allegorical, moral person.”

Liberalism, Marx claimed, had emancipated the second (sort of); the real task was to emancipate the first.

Human emancipation will only be complete when the real, individual man has absorbed into himself the abstract citizen; when as an individual man, in his everyday life, in his work, and in his relationships, he has become a species-being; and when he has recognized and organized his own powers (forces propres) as social powers so that he no longer separates this social power from himself as political power.


Tell it to the judge.

Update (5:30 pm)

My CUNY colleague Ruthann Robson has a useful analysis of the case over at SCOTUSblog. (By the way, once I’m in a position of power , I’m going to ban all uses of SCOTUS and POTUS and FLOTUS and other OTUS’s. I feel about those words the way I feel about the phrase public intellectual.)

{ 41 comments }

1

christian_h 04.29.14 at 6:11 pm

Very interesting post, thanks Corey. I’ll repeat my Facebook comment: how is it possible that the appeals court can interpret public court testimony as private speech. This just seems to me to be fundamentally at odds with the liberal understanding of the state and the justice system. (There is a reason our court records are public!)

2

Barry 04.29.14 at 6:12 pm

Mississippi officials should be notified; it looks like Alabama officials are working 24/7 to beat them to the utter bottom.

3

Metatone 04.29.14 at 6:24 pm

I agree (for the 2nd or 3rd time this year, watch out for airborne porcine raiders!) with christian_h. It’s a nonsense that public court testimony can be classified as private speech.
Most banal, it’s just not private.

But also, there’s a huge public interest in people being willing to testify – all the more so in this kind of case. If the principles of justice at work don’t get us to the public interest in justice in this case, it’s suggests there’s a serious problem with either the principles or reasoning at work.

4

stevenjohnson 04.29.14 at 6:37 pm

The truth is a defense against a charge of libel. Just saying.

5

John Quiggin 04.29.14 at 7:16 pm

Agreeing with previous commenters, and noting IANAL, it would seem more appropriate to treat the case as involving contempt of court, essentially,intimidating a witness. This would be a huge problem with or without the First Amendement. The problem is, I assume, that the courts haven’t acted, and that the witness can’t bring an action of their own.

Also worth noting that, except for the compulsion to testify, this is a whistleblower case. Alabama may be hard on whistleblowers, but the Obama Administration is far worse.

6

Bruce Wilder 04.29.14 at 8:00 pm

Is it a clearly established fact that Franks fired Lane, because of Lane’s testimony?

‘Cause I didn’t get that it is.

The First Amendment is a kind of sacred totem — one of very few — that can overcome the usual presumption of the law that the actions of superior authority, public or private, can not be questioned, let alone held accountable, by its victims.

I agree that the Obama Administration is extremely authoritarian, even by recent American standards, but, just wait, I predict things will get worse . . .

7

Anderson 04.29.14 at 8:06 pm

“Mississippi officials should be notified; it looks like Alabama officials are working 24/7 to beat them to the utter bottom.”

We also have Louisiana and Arkansas as neighbors – even Tennessee makes us look good, sometimes!

8

SamChevre 04.29.14 at 8:14 pm

This case is just all kinds of tricky.

I can see the job-related speech/private speech distinction; a policeman who goes off on a political rant directed at someone he has arrested should definitely be fired, while a policeman who writes a letter to the editor about some political issue should not be. (Practically, not legally, here.)

On the other hand, retaliation for testimony about one’s job? That seems more like public speech, but then some other protection than free speech should apply.

9

Corey Robin 04.29.14 at 8:36 pm

Bruce at 6: “Is it a clearly established fact that Franks fired Lane, because of Lane’s testimony? ‘Cause I didn’t get that it is.”

From my reading of the federal decision, it seems that no court ever ruled on the factual question of whether retaliation had occurred. The question that was up for grabs, from the district court on up, was whether Lane had been speaking in his capacity as an employee or as a citizen. That said, the federal appeals decision gives some hint — it’s hard to say where it comes down — that it thinks some retaliation occurred (see first graf on p. 4). And the Times reporting suggests that the Supreme Court accepts that it occurred; no one seems to contest it. But again that’s not the issue they deal with.

10

SusanC 04.29.14 at 8:43 pm

(Standard disclaimer: I’m not a lawyer). I’m surprised there isn’t settled precedent for testimony in a court case being protected. (In UK law, the Criminal Justice and Public Order Act 1994 makes it an offense to take retaliation against someone who has given evidence or acted as a juror; US law has 18 US code 1512, which is possibly a more narrowly defined offense but still the same sort of idea; the general thrust if these is that there’s a public interest in preventing witnesses being intimidated).

11

Corey Robin 04.29.14 at 8:46 pm

christian_h at 1: If you read the federal decision, the publicness of the speech depends less on the sphere in which the speech is occurring — i.e., a courtroom — than on the office of the speaker and the content of the speech. The court says over and over again (and it cites precedent) that the mere fact that this speech took place in a courtroom does not make it public speech. The real issue to be considered is that this is an employee talking about matters pertaining to his employment. And though it seems obvious to me that the matters pertaining to his employment in this context are in fact public — i.e., corruption — the court takes a different view of it. It in fact compares it to the speech of a police officer (somewhat along the lines SamChevre mentions above at 8) in some other case (and the testimony the cop later provided). Again, not public b/c it’s an employment-related matter.

I’d have to go back and re-read these cases, but during the McCarthy era, this distinction mattered a lot. All those government employees who were fired for being members of the CP or CP-fronts: they brought First Amendment cases, but it was held that denial or rescinding of public employment was not a penalty, in the way that a criminal sanction is, so therefore someone’s 1st Amendment rights were not violated when she lost her government job for her membership in the CP or a front group. The court in this case has similar language about how for purposes of determining retaliation under the 1st Amendment you have to establish that the speech in question is that of a citizen rather than that of an employee.

12

rea 04.29.14 at 8:52 pm

I don’t completely understand what is going on in this case, but the notion that a public employee acting in the course and scope of his or her employment is not entitled to claim First Amendment protection for his or her statements is fairly obvious, if you think about it.

Secretary of State [to news media]: “We must bomb Iran!”

President: “No, no, that’s not our policy! Resign, please.”

Secretary of State: “I ain’t resigning, and you can’t fire me–First Amendment!”

13

rea 04.29.14 at 9:07 pm

To put it another way, if because of your job and the context,you are speaking for the government, then the government ought to be able to control what you say.

14

SusanC 04.29.14 at 9:10 pm

It’s also an interesting conflict between the judicial branch and the executive branch of government. (e.g. is the executive branch legally permitted to coerce its employees into lying on oath to the judicial branch),

15

Bloix 04.29.14 at 9:26 pm

#6, 9 – this is where some knowledge of civil procedure is useful (warning: terminal boredom alert).

Every law student learns the distinction between questions of law and questions of fact. The judge decides the law; the jury decides the facts.

This case is about a question of law, decided by the judge. The questions of fact were never decided.

That happened because the defendants filed a “motion for summary judgment,” and the trial court granted it, ending the case. What is now before the Supreme Court is whether the grant of summary judgment was correct, or whether the case should go to trial.

A summary judgment is a ruling that, considering the evidence in the most favorable way possible for the plaintiff, a reasonable jury could not find for the plaintiff given the principles of law that apply.

So, on a motion for summary judgment, the court does not decide the facts. It simply says, here is what the plaintiff alleges and here are the facts that support the allegations. Are they sufficient to support a judgment for the plaintiff given the applicable law? If so, the case goes to trial. If not, the judge enters judgment for the defendants.

In this case, the court agreed with Lane that the evidence was sufficient to allow a reasonable jury to decide that Lane was retaliated against. It didn’t decide that issue – it didn’t have the power to do that, that power is reserved to a jury.

But then it took another step. It says, Okay, let’s suppose there’s a trial and the jury finds that Lane was retaliated against. Does he win? And it decides, no, he still loses, because the federal constitution doesn’t protect him, even if the State really did fire him in retaliation for his testimony.

And since Lane will lose no matter what the jury might decide, there’s no point in wasting everyone’s time and money on a trial. So the court grants defendants a judgment in a “summary” – that is, speedy and abbreviated – way, and no one ever decides the facts of the case.

The Supreme Court is now considering whether the lower courts got the law right. Does the federal constitution place limits on the right of Alabama to fire Lane at will? And if the answer is that the lower courts got the law wrong, it will send the case back for a trial, to determine the facts.

16

Corey Robin 04.29.14 at 9:34 pm

rea: How far do you want to take that principle? Can the Secretary of State prevent a mid-level employee in the State Department from speaking out against the Iraq War, say, in November 2002, of claiming there was no real basis for war? Might have saved a good many lives. I get the argument on your side — it’s Kant’s, to some degree — but in a society where there are more than 20 million government employees, do we really want to say that all of their speech as employees is owned by the government? And of course if the government owns their speech, why shouldn’t private employers own the speech of their employees? Wal-Mart employees can’t complain about Wal-Mart as a company? As an employer?

It’s actually even greater confirmation of Marx’s argument in On the Jewish Question. There he said that the only value of public life in bourgeois society was to use it for the pursuit of private ends. Now that principle is extended to the state itself: it owns the speech of its employees. It is a form of property.

17

Bloix 04.29.14 at 9:38 pm

A number of people (#5, #14) seem to think that the case is about witness tampering or obstruction of justice. It isn’t – Lane doesn’t allege that he was threatened or coerced. It’s purely about retaliation. The case he testified in wasn’t affected.

You can argue that that retaliation is wrong, and also that retaliation shouldn’t go unpunished because it will affect the testimony of witnesses in future cases. And both are true. But they are far afield from what we usually think of as First Amendment concerns. The problem for the Supreme Court is whether retaliation in this case – which is obviously bad – is something that implicates federal constitutional rights, and if so, what are the limits on those rights as they bump up against the right of a state employer to fire and discipline?

BTW, Alabama does have a whistleblower statute that would apply to Lane, and he made a claim under it. But the court held that his whistleblower claim has to be brought in state court, not in federal court, and he didn’t appeal that ruling. I assume he has preserved that claim and can bring it if he loses his First A claim.

18

Bloix 04.29.14 at 9:51 pm

#16 – “Can the Secretary of State prevent a mid-level employee in the State Department from speaking out against the Iraq War”

Of course he can’t prevent him. But he can fire him. It’s impossible to implement policy if mid-level career employees are publicly subverting the administration.

The appropriate course for the employee in that case is to resign. I once worked with a mid-level Foreign Service officer who resigned because his disagreement with the Clinton administration’s Bosnia policy. He went on to head an organization called the Action Council for Peace in the Balkans, which vociferously criticized administration policy. He later described the Foreign Service as a worthwhile career “if you can hold your tongue.”

http://www.adst.org/OH%20TOCs/HARRIS,%20Marshall.toc.pdf

19

Corey Robin 04.29.14 at 10:02 pm

“It’s impossible to implement policy if mid-level career employees are publicly subverting the administration.”

I think I have to disagree with you there, Bloix. It’s only impossible — and that’s potentially impossible, in fact — if the public responds to the claims that the mid-level career employees are making. If the public ignores the claims or if others dispute them, and they go nowhere, the policy isn’t undermined. And until the public acts — or other authorized officials act — the policy will be implemented. We’re not talking about the refusal to implement the policy, just speaking out against it.

Just to give you an analogy. Right now we have high-stakes testing in New York, as in most other states. Teachers and principals are leading the campaign against that testing. The principal of my daughter’s public school in fact wrote an oped in the Times denouncing the most recent round of tests. And then she led a rally of teachers, parents, and students against the tests. That didn’t stop the test from being administered; it was, and most kids took it. But if the protest continues, and continues to gather more support from parents and other citizens, it will ultimately undermine the policy.

Or perhaps you’re not applying the principle to all sectors of government employment but limiting it rather to highly sensitive areas of national security?

20

Patrick 04.29.14 at 10:05 pm

Are we so sure he wasn’t testifying as a private citizen? If he had been fired before instead of after testifying, would he still have had to respond to the subpoena or would a different agency rep have been sent in his place? If the former, then he was testifying on his own behalf.

21

Anderson 04.29.14 at 10:30 pm

Not real up on the case (or on 1A law for that matter), but there’s something a bit squishy about the 1A in the context of testifying in court. A witness in court is, typically, compelled to speak. I’m not sure compelled speech is what the 1A is designed to protect. At least, I would want to see a case holding as much.

What bugs us about the case is the idea of feeling compelled to choose between telling the truth in court and keeping one’s job. The administration of justice is what’s offended here, and that’s not really a 1A concern … not that there isn’t some other constitutional guarantee implicated here.

22

rea 04.29.14 at 10:31 pm

rea: How far do you want to take that principle? Can the Secretary of State prevent a mid-level employee in the State Department from speaking out against the Iraq War, say, in November 2002, of claiming there was no real basis for war?

As usual, the easy cases are at the ends, and the hard ones are in the middle. The DC garbage collector who speaks out against the war can’t be fired. The member of the president’s cabinet clearly can be. Whether somebody in the middle can be fired depends on job and context.The fact that what he says might carry more weight because of his position–well that’s a reason for not concluding that this is within the First Amendment protection, because in a sense he’s being a government spokesperson, and conveying the message that the government is divided on the issue. As Bloix says, the thing for someone in that position to do is to resign and speak out.

It’s not a matter of national security–if you’re a govenrment turkey inspector, then your public statements about turkey inspection need to conform to government policy–or fall within the statutory protection for whistleblowers.

23

mdc 04.29.14 at 10:36 pm

Seems like an easy rule would be: you can’t be fired for testifying under subpoena. Similar to a rule that you can’t be fired for fulfilling your jury duty.

24

adam.smith 04.29.14 at 10:48 pm

I’m unhappy about the free-speech/1st amendment angle. I guess it might resonate especially strong with Americans, but for the reasons rea and Bloix point out it’s tricky. There are clearly some instances of speech that are protected as private speech outside of the workpace and shouldn’t be protected in the workplace (verbal sexual harassment being probably the least contentious one).
And then, as this case shows, treating this as a free speech issue puts the burden on the laid off employee. The right to deal with this is to get rid of no-cause terminations. If employers – private or not – can only fire employees under a narrowly defined set of circumstances, we wouldn’t need to have this debate, since obviously “testified in a court case” wouldn’t qualify.

25

rea 04.29.14 at 10:54 pm

I’m unhappy about the free-speech/1st amendment angle

Well, yes. Clearly this shouldn’t happen (assuming the plaintiff can prove that it did happen), but the First Amendment may not be the right tool for fixing it.

26

Bloix 04.29.14 at 11:06 pm

#19- you’re right, I overstepped. It just makes the policy more difficult to implement.

Usually, employers can do whatever they want. If I sell Fords for a living and I’m overheard telling a customer that the Civic is better than the Focus, I’m going to get fired. And I take it we agree that Mozilla had the right to fire Brendan Eich.

But government employers are more limited than private employers. They can’t retaliate where the employee speaks while acting as a citizen. This is why it’s absurd to talk about the State “owning” speech. The State, in its role as employer, has less control over your speech than a private employer does.

In the example of the public school principal and teachers opposing the tests, the protesters do have the First Amendment right to express their views and opinions to the public. (They probably also have other protections under NY’s civil service law and their union contract.)

And under the Garcetti decision a mid-level State Department employee could be disciplined for expressing an anti-war view in official memos. But she probably would have the right to protest the war by attending a rally or writing a letter to the editor without fear of losing her job.

Before everyone decides that this is how it should be, how about the middle school teacher with a website where he jokes about how he’d like to assassinate Obama? Can he be disciplined?

Or the county clerk employee who tells a reporter same-sex marriages are against God’s will. Can she be transferred to a position where she won’t have anything to do with marriages?

Or the firefighters who appear in blackface on a parade float parodying the murder of an African-American man? Can they be fired?

Obviously, everyone has a First Amendment right to say whatever they want, no matter how hateful or disgusting. But everyone shouldn’t have a right to a government job.

27

SusanC 04.29.14 at 11:28 pm

I’m inclined to the (not-a-lawyer) view that Lane was testifying as a private citizen, not as a government employee here. Police officers, forensic pathologists etc. have a job spec that includes testifying in court as a major element, and part of the legal thinking seems to be that they can be fired if they’re no good at this part of their job (first amendment doesn’t protect them). Someone whose job spec doesn’t include appearing in court, but who happens to have discovered evidence of a crime as part of their job, is in a rather different position.

[Maybe relevant, philosophically if not legally: jurors can and do judge the reliability of a witness’s testimony differently depending on whether the witness is a police officer or some random citizen who just happened to see the crime take place. Whether they think the cop is more or less reliable may vary…].

28

adam.smith 04.29.14 at 11:30 pm

Before everyone decides that this is how it should be, how about the middle school teacher with a website where he jokes about how he’d like to assassinate Obama? Can he be disciplined?

depends on whether the joke is a felony (http://en.wikipedia.org/wiki/Threatening_the_President_of_the_United_States). If it isn’t – nope.

Or the county clerk employee who tells a reporter same-sex marriages are against God’s will. Can she be transferred to a position where she won’t have anything to do with marriages?

as long as it doesn’t affect her performance and she is clear that her statement is not in an official capacity – no.

Or the firefighters who appear in blackface on a parade float parodying the murder of an African-American man? Can they be fired?

again, as long as they’re on the float as private citizens and not as firefighters – nope.

At Northwestern, we have a notorious holocaust denier on the engineering faculty. He has tenure, he doesn’t publish his crap on university webpages and so he is protected by tenure. That sucks in this particular case, but it’s a right that should be extended to other employees as well.

29

shah8 04.30.14 at 12:29 am

/me blinks…

This one was really twisty for me to get ahold of, but…

I don’t think this is actually a first amendment issue. It’s a combination of two issues. First, at-will employment is incompatible with testing of any sort of legally provided protections, like free speech, sexual/racial harrassment, etc. For cause requires documentation, and thus provides paper trails that assists in what is and what isn’t a dismissal for illegal cause. Second, the firing seems to represent an administrative issue that the State of Alabama is responsible for. It would seem that you’d want to sue in state court, but aren’t the protections at a federal level? A quick inspection on wikihow would seem to suggest that at some level the plaintiff *has* to sue or otherwise involve federal organs in prosecuting a wrongful termination. It feels Kafkaesque, because the defendant is the state of Alabama and aren’t states due quite a bit of immunity in most ways?

30

Corey Robin 04.30.14 at 1:02 am

Just so people are clear, a majority of the Supreme Court — including three of its most right-wing justices (Alito, Roberts, and Scalia) — seem very likely to hold that Lane’s subpoenaed testimony is in fact First-Amendment protected speech. The attorney for Lane’s boss tried to make the case that this wasn’t about the First Amendment, but it doesn’t seem like anyone on the Court bought that argument. The only question they’re now wrestling with this is whether Lane’s boss should have known at the time of his firing that Lane’s testimony was in fact protected speech.

My post was about the lower court’s ruling, in which the judges made the claim that Lane was speaking as an employee rather than as a citizen and that therefore his speech was not protected. Again, it seems as if a majority of the Supreme Court is definitely going to reject that argument.

But more generally, I’d urge folks who want to argue that freedom of speech is not how we should be thinking about these employment matters to rethink that position. As I’ve argued in a bunch of posts here, historically employment has been one of the most effective vehicles by which people’s freedom of speech has been compromised and abridged in this country. W.E. B. DuBois has a great quote to this effect in *Reconstruction*, as does Tocqueville, come to think of it, in his diaries from his trip to the US. I think I’ve mentioned this statistic here before, but it’s worth reiterating: During the McCarthy years, less than 200 people went to jail for their beliefs. Somewhere, however, between 10,000 and 15,000 people were fired (I believe that’s just at the government level, though I’d have to double check) for their beliefs, and anywhere from 1 to 2 out of 5 of every worker — in the public and the private sector — was subject to investigation and/or surveillance for their beliefs.

If you want to talk about political repression and freedom of speech/association in the United States, you can’t not talk about employment. (I think, come to think of it, that Chris Bertram, Alex Gourevitch and I also discussed this in our “Let It Bleed” post here a few years back.) I realize this takes us far afield from this particular case, which is not about political repression, but I just want to push back a bit on the notion that we should separate the First Amendment and freedom of speech issues from the workplace. That just cripples you, intellectually at a minimum, from understanding how repression works in this country — as many in the labor movement in the 19th century understood at too well when they argued for grounding many of their basic claims to freedom and association in the First Amendment (and the 13th as well). They lost, of course, but not because they necessarily had the weaker part of the argument.

31

adam.smith 04.30.14 at 1:18 am

But more generally, I’d urge folks who want to argue that freedom of speech is not how we should be thinking about these employment matters to rethink that position.

just to clarify my position here: I understand the free speech implication of precarious (i.e. at will) employment and I think your posts on that are useful to illustrate just how bad the situation in the US is. I just think that framing concerns about precarious employment mainly in free speech terms is weak sauce. We should be thinking more generally about decommodifying labor (in Esping Andersen’s terminology). Better employment protection takes care of the free speech concerns more effectively (since it shifts the burden to provide a cause for termination on the employer) not to mention its broader economic benefits.

32

Corey Robin 04.30.14 at 1:32 am

31: “I just think that framing concerns about precarious employment mainly in free speech terms is weak sauce. We should be thinking more generally about decommodifying labor (in Esping Andersen’s terminology). Better employment protection takes care of the free speech concerns more effectively (since it shifts the burden to provide a cause for termination on the employer) not to mention its broader economic benefits.”

I’m all in favor of stronger employment protections and shifting to a just cause model. As well as decommodifying labor. As a political strategy I don’t know how far that can take you. Not that I want to put strategy first; we’re not building a movement here. But if you want to make a case for just cause, at least in this country, I think one of the strongest arguments, or at least places to begin, is to show how few rights you have in the workplace. Rights are the lingua franca of politics in this country. I’m often amazed at how many people I talk to who think the First Amendment actually does apply in the workplace; as I think I mentioned in My Little Pony post, every time a case like that emerges, you see thousands of people on the internet rushing to denounce this violation of the First Amendment. That seems like a great opportunity to me: it’s almost a classic case of meeting people where they are at, and even better, since where they are at is like ten thousand miles ahead of reality. So if you want to talk about framing, I think the First Amendment works rather well.

That said, I do see its limitations.

33

shah8 04.30.14 at 1:40 am

Just how friendly do you think this situation is towards use as a teachable case via First Amendment lens?

Just say: “I got fired because I talked to the cops, and there’s nothing I could have done but get fired.”

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Corey Robin 04.30.14 at 1:44 am

“Just how friendly do you think this situation is towards use as a teachable case via First Amendment lens?”

Very friendly. As I say in the OP, so solicitous is the state (at least the federal court) of the denial of freedom that is at the heart of the employer-employee relationship that it is willing to sacrifice its own interests in order to preserve it.

35

shah8 04.30.14 at 2:02 am

I don’t think people care as much about the First Amendment as you seem to think. Or more correctly, I don’t think people put a lot of emotional heft in it without specific utility in mind. Something that takes some doing to follow, like this case, is liable to leave all but lawyers and nerds (protesting the dungeon-keeper’s arbitrariness yet again) pretty far behind.

Safer to play it as Catch-22.

36

rea 04.30.14 at 2:52 am

I’d urge folks who want to argue that freedom of speech is not how we should be thinking about these employment matters to rethink that position.

We’re talking past each other a bit, I guess. I’ve been talking about the freedom of speach protected by the 1st and 14 Amendments to the US Constitution, which protects only against government action. You’re talking about some kind of natural law freedom of speach, that for example protects private employees from retaliation by their employer, and that applies to government employees because they are employees, and not (in contrast to the 1/14 protection) because the employer is the government.

Rather differently than you, I see the problem as being at-will employment. the rule governing most private employment in the US, allowing an employee to be fired for any reason, or no reason at all.

37

rea 04.30.14 at 3:08 am

And of course, when you accept a job, you are always trading freedom for pay. Freedom of movement is pretty basic, but you still have to show up for work. Similarly, employment usually means some limitations on complete freedom of speach. You expect that you have to say what the employer wants you to say (“thank you and come again”), keep the employer’s secrets if they don’t involve something illegal, and refrain from being a public embarrassment.

38

Corey Robin 04.30.14 at 3:13 am

rea: There’s a back story to this post. You might want to consult this post.

http://crookedtimber.org/2012/07/01/let-it-bleed-libertarianism-and-the-workplace/

You’ll see that the problem with at-will employment is hardly a novel idea around here. Nor is it something that needs to be opposed to a discourse around the First Amendment. Indeed, as I mentioned earlier in this thread, historically, it was the First Amendment that labor invoked in order to argue against at-will employment.

39

Val 04.30.14 at 11:47 am

I read this and thought how ridiculous this scenario is. I’m not an American, I’m an Australian, and goddess knows we have our own forms of ridiculousness, but this particular form struck me as somehow American.

And then (because I was composing this email in my head while cooking tea /dinner/ supper/ whatever you call it), I also realised why it struck me as American – because it’s a Catch 22, and Catch 22 was written by an American. ‘We have the freedom, we have all the freedom, we can say whatever we want’ – except not, because even when you are required by the state to tell the truth, your employer also has the right to sack you for doing so. Hopefully your Supreme Court will overturn it, but it’s frightening, isn’t it?

Is this an American thing?

40

Manju 04.30.14 at 6:16 pm

I’ve never commented here before but can no longer hold my peace. I’m deeply saddened that Flo-Jo will never be FLOTUS.

Even J-Lo as POTUS can’t make up for the lack of FLOJOFLOTUS, though it might help if she nominates Scott Lemieux for SCOTUS. And don’t get me started on SOSOTUS.

41

Colin 05.01.14 at 3:28 am

I don’t know much about US law, but just as a matter of public policy, it seems bizarre to me that witnesses in a court case are not legally protected from retaliation, whether or not this is covered by the First Amendment. A country where witnesses can be threatened into silence with impunity is one where the courts quickly cease to have any meaning as an instrument of justice.

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