As Jeff has always pointed out, any comments he posted on his blog, Pro Cynic, or elsewhere on the Internet were always done in his spare time and not at work on his government computer. Second, Jeff had disclosed his blog to his superiors at the Attorney General's office and had their consent to publish his personal views, as long as he avoided commenting on state and local issues in Indiana and always did so in his personal capacity and not as a representative of the Attorney General's office. From my own personal observations, Jeff never associated any of his Internet blog posts and comments with his professional duties at the Attorney General's office and he always steered clear of state and local issues.
The most important point, however, is the manner in which the comments in question made by Jeff were taken completely out of context to paint him in a false light. Knowing Jeff's political views, I can assure you he cannot be classified strictly as a conservative Republican. His views on a number of issues diverge from many of the views held by people who consider themselves conservative Republicans. As Jeff notes, he comes from a union household and is not per se hostile to the rights of public employee unions. Jeff also points out his work at the Attorney General's office has nothing to do with collective bargaining issues; he strictly handles eminent domain cases. And we should also not overlook Jeff's recognition as an outstanding lawyer in the Attorney General's office for nearly 10 years.
Taking all of the factors together, Turley now believes Jeff has a potentially strong free speech claim because his comments were made on matters of public concern completely unrelated to his professional work duties. Here's his take:
The connection made in this context to the office was not apparently made by Cox but by Mother Jones magazine. Cox has since closed his blog and regrets causing the controversy. The question is why he was not simply given a warning about such comments and how they reflect upon the office. Now that his name has been associated with the office, he would likely have curtailed or stopped such comments.I really appreciate Turley giving Jeff the time and a fair shake with his analysis based on constitutional law principles. It's sure as hell more than he's getting from the national and local news media who have been hell bent on demonizing a person they've never met and know nothing about. If Professor Henry Karlson were still alive, he would have been one of the first persons to jump to Jeff's defense, and he wouldn't have hesitated to condemn Zoeller for his hasty decision to fire a respected decade-long attorney with the office.
There is obviously a great deal of anger over these comments, but the real question is whether a public employee like Cox has any protection for comments made as a private citizen.
In 2006, the Court decided the case of Garcetti v. Ceballos, in a close 5-4 decision against a public employee. In this case, Justice Kennedy ruled that the First Amendment does not protect “every statement a public employee makes in the course of doing his or her job.” However, this was a case where the assistant district attorney was making the comments are part of his duties and the Court ruled that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” In this case, Cox made no association with his office. Notably, even in a matter involving statements made in the course of one’s duties, the vote was a close call with Justice Alito deciding the case as the fifth vote.
In Pickering v Board of Education (1968), the Court ordered the reinstatement of a teacher who wrote a letter to a newspaper critical of the local school board. The Court found that a public employee’s statements on a matter of public concern could not be the basis for termination without more of a showing, such as knowing or reckless falsehoods or the statements were of the sort to cause a substantial interference with the ability of the employee to continue to do his job.
I have great problems with the scope of the Garcetti opinion. Yet, Kennedy did note that:
At the same time, the Court has recognized that a citizen who works for the government is nonetheless a citizen. The First Amendment limits the ability of a public employer to leverage the employment relationship to restrict, incidentally or intentionally, the liberties employees enjoy in their capacities as private citizens. See Perry v. Sindermann, 408 U. S. 593, 597 (1972) . So long as employees are speaking as citizens about matters of public concern, they must face only those speech restrictions that are necessary for their employers to operate efficiently and effectively. See, e.g., Connick, supra, at 147 (“Our responsibility is to ensure that citizens are not deprived of fundamental rights by virtue of working for the government”).
This case would appear to involve matters of public concern and comments made as an individual citizen.