Thursday, February 24, 2011

Jonathan Turley Weighs In On Zoeller's Firing Of Jeff Cox

This morning I had a long conversation with former Deputy Attorney General Jeff Cox who was fired yesterday by Attorney General Greg Zoeller for satirical comments he had posted on Twitter discussing the showdown between Gov. Scott Walker and the public employees unions in Wisconsin after he was targeted by liberal bloggers at Mother Jones. I noticed well-respected Georgetown University Law School Professor Jonathan Turley had picked up on Cox's firing and had offered his first impression of whether Jeff's firing had violated his constitutionally-protected free speech rights on his blog. Turley thought Cox's case was weak, but he was relying on the facts as reported by the news media, which were very distorted against Jeff. I've contacted Turley on a number of issues in the past and always found him open to discussing them. I urged Jeff to immediately call Turley and give his side of what happened. Thankfully, Turley was willing to listen to Jeff and now sees his case in an entirely different light.

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.

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.
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.


CircleCityScribe said...

As an average citizen, I think the comment was funny. I never thought is was the thought of a deranged weirdo who may present a danger. I saw it as a spoof about a situation in Wisconsin, that was humorous. Furthermore, I recognize that this had nothing to do with his employment nor reflect in any way on the employer's reputation or standing.

I really wish that the AG would have taken a lighter approach on just did not warrant dismissal!

Paul K. Ogden said...

I agree with the opinion of Turley. I know all too well about Garcetti. Garcetti says that if you are a government employee and you speak out about something related to your job, then the federal Free Speech clause doesn't protect you.

While Garcetti was supposed to be narrowly confined to just your job duties, the 7th Circuit and other Circuits have extended to basically mean anything in the work area. As a result of Garcetti and the cases that have expanded it, government workers have almost no federal free speech protection for talking about anything that happens in the work place.

The AG's Office loves Garcetti. As I noted on my blog, the AG's office under Carter and Zoeller is extremely hostile to whistleblowers. They won't investigate wrongdoing in government that's pointed out by state employees and jump at the chance to use Garcetti to get their whistleblowing lawsuits dismissed.

In my case I was blowing the whistle about illegal things going on at the Department of Insurance. The AG raised Garcetti and we pointed out that many of the things I was talkng about had to do with other sections of the Department of Insurance for which for which I as supervisor of the Title Insurance Division had no job responsibilities. The 7th Circuit didn't care that those other things weren't within my job duties. The 7th Circuit continued its tradition of an extremely expansive reading of Garcetti.

Fortunately for my case the Indiana free speech clause provides more protection than the First Amendment and Garcetti doesn't apply. You also have a state whistleblowing law that applies in my case that wouldn't apply in Jeff's. I fully expect my case will be returned to the Marion County Superior Court.

I do find it more than a little interesting though that Jeff's comment about using "live ammunition" on protesters actually has more protection under the Frist Amendment than my comment pointing to violations of the law in the Department of Insurance. But that's the First Amendment says thanks to Garcetti. That's a case that begs to be overturned.

Gary R. Welsh said...

The same people who jumped down Jeff's throat for what he said were all giddy when Obama remarked that if your opponent shows up to a fight with a knife, you bring a gun.

IndyPaul said...

Interesting analysis. You point out Kennedy's opinion that "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."

I myself can't imagine that any judge is going to say that the first amendment would shield an assistant AG from adverse action for advocating a state government's use of live ammunition on protesters. That kind of statement reflects upon the AG and his ability to be effective. Certainly the statement reflects enough in lack of decorum and respect for democratic ideals to permit the AG to terminate him on that basis.

Gary R. Welsh said...

Again, Paul, The quote was taken out of context. Protesters were carrying signs that had photos of Gov. Walker's head in a gun sight, as well as other images and messages threatening violence. Internet twitter posts made by lefties similarly promoted violent actions against the governor and Republican lawmakers. Police had told lawmakers the crowds were so large they could not ensure their safety. His comment came in response to riot police being called in to assist with crowd control. The live ammo comment was satirical response to the violent threats of the protesters. Nobody in the media cared to ask why public school teachers could hold up signs at the protest that were essentially advocating the assassination of the state's governor, but national media attention was focused on Jeff for that one comment in response to the heightened rhetoric on the other side. Typical double standards we've come to expect from our left-leaning news media.

IndyPaul said...

The issue here, as I understand it, is whether the first amendment protects an assistant attorney's job when he advocates that the government fire upon peaceful protesters. I saw the context - he was asked if he was serious, and he said for people threatening the safety of legislators and the governor damn right. Well, even if some protesters were carrying the kind of signage you say they were, they didn't take any action to "threaten the safety" of government officials. For an employee of Indiana's top law enforcement agency to advocate using live ammo on these people reflects terribly on the agency, and the AG was absolutely right to fire him. He was an employee of the AG IS and absolutely should be held to a higher standard.

Gary R. Welsh said...

Again, Paul, his comment was in response to assassination threats being made against the governor and Republican legislators. There was concern for the safety of the elected officials. Jeff didn't say to go start shooting the demonstrators; he was responding to their heightened rhetoric by suggesting the police sent out to protect them better be carrying live ammo. He said it was intended as an attention-grabbing rhetorical device. If put in context, he was not suggesting they go out and start firing indiscriminately on demonstrators with live ammo. What did Obama mean when he said if they bring a knife to the fight, we bring a gun?

IndyPaul said...

Again, what? You claim the words were taken out of context, but you don't quote either the context OR the words. In response to a tweet about police going in to clear the Statehouse grounds, Cox said "USE live ammunition." When asked if he was serious, he said, "'You're damned right I advocate deadly force." Its pretty strightforward. Your responses misrepresent what he said. Nor is it a common colloquialism that means something else. He admits he made a lousy choice of words. Why don't you?