BEHIND THE SCENES
Journal of 23rd Year
Losing in Afghanistan
Whistleblowers & Court
U.S. Buys Press
BEHIND THE CURTAIN
Tea Party Tale
Drones Over America
Paper of Power?
Politics of Genocide
Anatomy of Epidemic
FDR & New Deal
Zaps - 09/10
NOTE: Z Magazine subscribers and sustainers have access to all Z Magazine articles here and in the archive. The latest Z Magazine articles available to everyone are listed in the Free Articles box at the top of the table of contents, and are starred in the list below. Questions? e-mail Z Magazine Online.
Whistleblowers Under the Conservative Roberts Court
On August 7, Elena Kagan took the oath to serve on the U.S. Supreme Court, the final stop for all constitutional litigation and the tribunal that issues authoritative interpretations of the Bill of Rights, which include the First Amendment. As these rulings cannot be overturned by Congress, the Supreme Court wields power that is hardly commensurate with the relatively meager public scrutiny attracted by the nine Justices who serve lifetime appointments.
Kagan's appointment will not change the balance of power on the Court. She replaces John Paul Stevens, who was the most liberal Justice at the time of his retirement. That Justice Stevens was a moderate Republican who was appointed by President Ford in 1975 only confirms how far to the right that Court has shifted. As it now stands, the Court has four liberals and five conservatives, one of whom, Justice Anthony Kennedy, occasionally votes with the liberal wing. Since the Court's conservatives show no sign of retiring anytime soon, Court watchers believe that the conservative majority will hold for years to come, even if President Obama's re-election in 2012 forces them to remain on the Court for another four years to avoid being replaced by their ideological opposites.
While Kagan's nomination attracted renewed public scrutiny to the Court, that attention has overlooked a profound recent shift in the Court's First Amendment jurisprudence. This omission was particularly significant in light of Kagan's expertise in First Amendment issues.
Indeed, when the New York Times in July 2010 commemorated the fifth anniversary of the appointment of Chief Justice John Roberts, in noting the Court's sharp turn to the right over the last few years, it drove home that point in describing Hudson v. Michigan, a Fourth Amendment case that granted the police additional authority to conduct unannounced home searches. The Court handed down that decision in 2006 only after President George W. Bush appointed Justice Samuel Alito to replace Justice Sandra Day O'Connor, who had heard oral arguments in the case, but retired from the Court before casting her vote. Based on her comments at oral arguments, the New York Times suggested that Justice O'Connor would have suppressed the evidence in that case and struck down the search as unconstitutional. Justice Alito sided with the police.
Garcetti v. Ceballos
An important First Amendment case, also from 2006, met the same fate as Hudson v. Michigan. That case, Garcetti v. Ceballos, split the Court 4-4, after Justice O'Connor heard oral arguments in the case but retired before the Court could issue a decision. Legal scholars believe that, as the Court's long-time swing vote, her practical approach to constitutional issues would have resulted in a victory for the plaintiff, a Los Angeles assistant district attorney who suffered retaliation after blowing the whistle over an illegitimate search warrant. After Justice O'Connor left the Court in 2005, the Court heard the case again and voted 5-4 against the plaintiff, setting a new standard governing the First Amendment rights of public employees to speak out on the job without fear of retaliation, including termination. Issued in 2006, this ruling has nearly eviscerated the rights of conscientious public whistleblowers who stick their neck out in the pursuit of good government. Justice Alito voted with the majority in Garcetti.
Prior to the Garcetti ruling, the Supreme Court had framed the legal question as follows: if a public employee spoke out on anymatter of public concern, they generally could not suffer retaliation. Public or private speech that drew attention to "any matter of political, social, or other concern to the community" constituted speech on a matter of public concern. In outlining this framework in 1983, the Court ruled that, "When a public employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest, absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee's behavior." For many public employee whistleblowers, particularly if they did not belong to a labor union, this broad "public concern" standard was likely their only protection against arbitrary termination or demotion.
Garcetti changed the ground rules as the new legal standard narrows the "public concern" definition. Under Garcetti, work-related speech is not protected under the First Amendment if that speech is made pursuant to the employee's official job duties. The Court stated, "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." One of the concerns guiding this new rule was the need for governmental employers to maintain "sufficient discretion to manage their operations." The Court is also reluctant to second-guess routine personnel decisions, expressly declining to "commit state and federal courts to a new, permanent, and intrusive role, mandating judicial oversight of communications between and among government employees and their superiors in the course of official business." Under Garcetti, the emphasis is no longer on the importance of the whistleblower's speech, but on the government's need to maintain an efficient workplace and discretionary supervisory authority over employees.
Applying this test for the first time in Garcetti, the Court held that while the assistant district attorney raised serious concerns in the workplace about the propriety of a search warrant, since he made that speech pursuant to his job responsibilities, it was not free speech, but work-related speech and he, therefore, had no constitutional recourse against his retaliation. A case that could have prevailed at trial before a sympathetic jury was rejected by the Supreme Court, which said the plaintiff did not speak as a citizen, but as an employee who was paid to discuss these matters with his supervisors.
Over the years, the Supreme Court has carved out other ways for government employers to prevail in free speech and whistleblower claims under the First Amendment. When the Court initiated this line of cases in 1968, it held that even if the employee does speak on a matter of public concern, the government can still win the case if the employer reasonably believes the speech would disrupt workplace efficiency,i.e., if the speech interferes with efficient government operations. As interpreted by the lower courts, the employee could still win the case if his speech was sufficiently important to outweigh the government's interest in maintaining efficient operations. Under this framework, whistleblowers who spoke out against government corruption enjoyed far greater rights than the government's interest in maintaining workplace efficiency. In 1977, the Court ruled that even if the employee is terminated in retaliation for speaking out on matters of public concern, the government could still win the case if it proves that it would have hypothetically terminated the employee even without taking the speech into account. The Court has also entitled public officials to certain immunities from litigation if the lawsuit raises unique or novel issues of First Amendment law.
But these defenses did not limit the meaning of "public concern" speech. Under Garcetti, there is no balancing of interests between the employee and her government employer. If the employee speaks out against embezzlement, nepotism, or other egregious abuses of authority, the First Amendment does not protect her if that speech grows out of her job duties. If the best whistleblowers speak from personal experience about malfeasance or corruption, they are now the ones with the fewest First Amendment protections. Very often, the whistleblower speaks out from what she has personally witnessed. Chances are, she knows about government misconduct as a result of her daily job responsibilities. That connection—speaking out pursuant to job duties—brings the case within Garcetti and denies the employee any recourse if she is terminated or demoted in retaliation for her speech. In contrast, less dramatic speech, such as a letter to the editor on a matter of general public interest unrelated to the employee's daily work responsibilities, remains protected under the First Amendment.
For these reasons, over the last four years, Garcetti has had a devastating effect on the rights of government whistleblowers. As the lower federal courts must faithfully apply Garcetti's reasoning in similar First Amendment cases, they are routinely dismissing lawsuits that would have gone to trial less than a decade ago, before Garcetti.
Garcetti's broad reach does not simply restrict the rights of whistleblowers. The United States Court of Appeals in Manhattan had long been known for its broad constitutional protections for government whistleblowers and public employee speech in general. However, in January 2010, applying Garcetti for the first time, the Court of Appeals, led by two Republican-appointed judges, ruled in Weintraub v. Board of Education that a school teacher who filed a union grievance protesting the discipline of an errant student did not engage in free speech, but official-duty speech, and could therefore be disciplined in retaliation for the grievance. Further embellishing Garcetti's language that public employee speech is not constitutionally protected if it is made pursuant to official job duties, the Second Circuit ruled that the teacher's grievance enjoyed no First Amendment protection, reasoning, "under the First Amendment, speech can be 'pursuant to' a public employee's official job duties even though it is not required by, or included in, the employee's job description, or in response to a request by the employer. In particular, we conclude that Weintraub's grievance was 'pursuant to' his official duties because it was 'part-and-parcel of his concerns' about his ability to 'properly execute his duties,' as a public school teacher—namely, to maintain classroom discipline, which is an indispensable prerequisite to effective teaching and classroom learning." This legal reasoning was unthinkable prior to Garcetti.
The Court's strained ruling in Garcetti stands in contrast to its broad protections in other First Amendment contexts. As a practical matter, the modern Supreme Court takes an "absolutist" view of political speech. In 2010, the Court held in Citizens United v. Federal Elections Commission that the First Amendment prohibits the government from restricting independent corporate contributions to political campaigns. Citizens United overruled a 19-year-old Supreme Court ruling. Two years earlier, in Davis v. Federal Election Commission, the Court struck down the "millionaire's amendment," which allowed political candidates to exceed certain spending caps from individual contributions if their opponents poured excessive personal wealth into their campaigns. While the millionaire's amendment attempted to level the playing field, the Court held that it unfairly penalized wealthier candidates, who did not enjoy any comparable spending adjustments. In 2009, Justice Thomas suggested that the FCC's indecency regulations that levy huge fines against television broadcasters may be unconstitutional, a proposition that would overrule two Supreme Court rulings and grant nearly unfettered speech rights to network broadcasters for the first time.
Disparate First Amendment rulings by the Supreme Court mean that some citizens and corporate entities have greater speech rights than others. Garcetti creates paradoxes. First, the public employees who are in the best position to draw attention to government misconduct now have sharply diminished constitutional protection against retaliation from supervisors who do not want any sunlight shining on public malfeasance. Second, while the Supreme Court has gone out of its way to expand the First Amendment rights of both corporations desiring to contribute to political campaigns and wealthy candidates who self-finance their campaigns, its oft-stated desire to promote robust discussion of public affairs has skipped over the rights of rank-and-file public employees completely.
Z Magazine Archive
AnnouncementsLABOR - May 1 is May Day. Workers of the world will celebrate the 124th anniversary of International Worker’s Day. Born out of a call for an 8-hour workday in the United States, this day is an opportunity for all workers to show their solidarity with one another, as well as to renew the call for labor rights.
FARM CONFERENCE - The Farm Conference on Community and Sustainability will be held May 24-26 in Summertown, TN, in partnership with the Fellowship of Intentional Communities. Tour green homes, see sustainable food production, learn about solar installations, alternative education, midwifery, and more.
Contact: Douglas@thefarmcommunity.com; http://www.thefarmcommunity.com/.
PALESTINE - The Conference of the Palestinian Shatat in North American will be held June 3-5 in Vancouver. The conference will examine the future of the Palestinian liberation movement.
Contact: firstname.lastname@example.org; http://www.palestinianconference.org/.
LABOR - The Pacific Northwest Labor History Association’s 45th annual conference will be held May 3-5, in Portland, OR. This year’s theme is Labor Under Attack: Learning from the Past and Preparing for the Future. A call for presentations, workshops and papers is currently underway.
Contact: PNLHA, 27920 68th Ave. East, Graham, WA 98338; 206-406-2604; PNLHA1@aol.com; http://www3.telus.net.
MARIJUANA - On the first Saturday of May marijuana legalization activists will hold informational and educational events, rallies and marches in over 300 cities around the world.
ECONOMICS - The Union For Radical Political Economics will hold its 39th annual conference May 9-11 in New York City.
RECLAIM THE DREAM - The 2013 Poor People’s Campaign & March from Baltimore to Washington D.C. will be May 11. Communities, schools and unions interested in participating are encouraged to contact the Baltimore People’s Assembly.
Contact: 410-500-2168; 410-218-4835; BaltimorePeoplesAssembly@gmail.com; Southern Christian Leadership Conference of Baltimore and the Baltimore Peoples Power Assembly, 2011 N. Charles St., Baltimore, MD 21218.
MOTHER’S DAY - The 17th Annual Mother’s Day Walk For Peace will be May 12th, in Dorchester, MA. The walk began in 1996 for families who had lost children to violence. The day has become a way for thousands of people to financially support the work of the Louis Brown Peace Institute.
Contact: http://www.ldbpeaceinstitute.org/; http://mothersdaywalk4peace.org/.
NATO 5 - An International Week of Solidarity with the NATO 5 has been called for May 16-21. Supports call on supporters to raise awareness of the NATO 5 and support funds for the defendants on the one-year anniversary of their preemptive arrests.
Contact: email@example.com; https://nato5support.wordpress.com.
MOUNTAINTOP - The 2013 Mountain Justice Summer Activist Training Camp will be held May 19-27 in Damascus, VA. It will be a week of workshops, field trips to view Mountain Top Removal coal mines, direct actions, and service project.
FEMINIST SCI-FI - The feminist science fiction convention WisCon 37 is scheduled for May 24-27 in Madison, WI.
Contact: WisCon, ? SF3, PO Box 1624, Madison, WI 53701; firstname.lastname@example.org; http://www.wiscon.info/.
ANARCHY FEST - A month-long Festival of Anarchy is scheduled for May in Montreal. The festival includes The Montreal Anarchist Bookfair (May 19-20).
Contact: http://www.anarchistbookfair.ca/; http://www.radicalmontreal.com/.
LABOR - The International Labor Rights Forum will present: Down the Supply Chain, Driving Corporate Accountability, on May 22 in Washington, DC. The Labor Rights Awards Ceremony and Reception will honor pioneers in supply chain worker organizing, working solidarity and international labor rights policy.
MULTICULTURE - The 26th annual National Conference on Race & Ethnicity in American Higher Education (NCORE) will take place May 28-June 1, in New Orleans.
Contact: SWCHRS, 3200 Marshall Avenue, Suite 290, Norman, OK 73072; 405-325-3694; email@example.com; www.ncore.ou.edu.
MEDIA - The 2013 Alliance for Community Media Annual Conference will be held May 29-31, in San Francisco, CA. Participants will include educators, community leaders, media professionals, journalists, nonprofit leaders, policymakers and students.
RADIO - The 38th Annual Community Radio Conference is schedule for May 29-June 1, in San Francisco, CA, with discussions and workshops.
Contact: 1101 Pennsylvania Ave. NW, Suite 600, Washington, DC 20004; 202-756-2268; firstname.lastname@example.org; http://www.nfcb.org/.
BRADLEY MANNING - On June 1, a rally will be held at Fort Meade in support of Bradley Manning.
BIKES - Bikes Not Bombs is holding its 24th annual Bike-A-Thon and Green Roots Festival in Boston, MA on June 3, with several bike rides scheduled, music, exhibitors and more.
Contact: Bikes Not Bombs, 284 Amory St., Jamaica Plain, MA 02130; 617-522-0222; email@example.com; www.bikesnotbombs.org.
LEFT FORUM - The 2013 Left Forum will be held June 7-9, at Pace University in New York City.
Contact: 365 Fifth Avenue, CUNY Graduated Center, ? Sociology Dept., New York, NY 10016; http://www.leftforum.org/.
VEGAN FEST - Mad City Vegan Fest will be held in Madison, WI, June 8. The annual event features food, speakers, and exhibitors.
Contact: 122 State Street, Suite 405 B, Madison, WI 53701; firstname.lastname@example.org; http://veganfest.org/.
ADC CONFERENCE - The American-Arab Anti-Discrimination Committee (ADC) holds its annual conference June 13-16, in Washington, DC, with panel discussions and workshops on civil rights, media and other topics.
Contact: 1990 M Street, Suite 610, Washington, DC, 20036; 202-244-2990; email@example.com http://convention.adc.org/.
CUBA/SOCIALISM - A Cuban-North American Dialog on Socialist Renewal and Global Capitalist Crisis will be held in Havana, Cuba, June 16-30. There will be a 5 day Seminar at University of Havana, plus visits to a cooperative, urban garden, community development project, social research centers, and educational & medical institutions.
Contact: firstname.lastname@example.org; http://www.globaljusticecenter.org/.
NETROOTS - The 8th Annual Netroots Nation conference will take place June 20-23 in San Jose, CA. The event features panels, trainings, networking, screenings, and keynotes.
Contact: 164 Robles Way, #276, Vallejo, CA 94591; email@example.com; http://www.netrootsnation.org/.
MEDIA - The 15th annual Allied Media Conference will be held June 20-23, in Detroit.
Contact: 4126 Third Street, Detroit, MI 48201; http://alliedmedia.org/.
GRASSROOTS - The United We Stand Festival will be hosted by Free & Equal, June 22 in Little Rock, Arkansas. The festival aims to reform the electoral process throughout the U.S.
SOCIALISM - The Socialism 2013 Conference is scheduled for June 27-30 in Chicago, featuring talks and panel discussions.
Contact: firstname.lastname@example.org; http://www.socialismconference.org.
LITERACY - The National Association for Media Literacy Education (NAMLE) will hold its conference July 12-13 in Los Angeles under the heading, Intersections: Teaching and Learning Across Media.
Contact: 10 Laurel Hill Drive, Cherry Hill, NJ 08003; http://namle.net/conference/.
IWW - The North American Work People’s College will take place July 12-16 at Mesaba Co-op Park in northern Minnesota. The event will bring together Wobblies from branches across the continent to learn new skills and build One Big Union.
PEACESTOCK - On July 13th, the 11th Annual Peacestock: A Gathering for Peace, will take place at Windbeam Farm in Hager City, WI. The event is a mixture of music, speakers and community for peace. Sponsored by Veterans for Peace.
Contact: Bill Habedank, 1913 Grandview Ave., Red Wing, MN 55066; 651-388-7733; email@example.com; http://www.peacestockvfp.org.
CHILDREN’S DEFENSE - July 15-19, join clergy, seminarians, Christian educators, young adult leaders and other faith-based advocates for children at CDF Haley Farm in Clinton, Tennessee, for five days of spiritual renewal, networking, movement building workshops, and continuing education about the urgent needs of children at the 19th annual Proctor Institute for Child Advocacy Ministry.
Contact: firstname.lastname@example.org; http://www.childrensdefense.org.
ACTIVIST CAMP - Youth Empowered Action (YEA) Camp will have sessions in July and August in Ben Lomond, CA; Portland, OR; Charlton, MA. YEA Camp is designed for activists 12-17 years old who want to make a difference in the world.
Contact: email@example.com; http://yeacamp.org/.
LA RAZA - The annual National Council of La Raza (NCLR) Conference is scheduled for July 18-19 in New Orleans, with workshops, presentations and panel discussions.
Contact: NCLR Headquarters Office, Raul Yzaguirre Building, 1126 16th Street, NW, Washington, DC 20036; 202-785-1670; www.nclr.org.
LABOR - The Eastern Conference For Workplace Democracy: Growing Our Cooperatives, Growing Our Communities, will be held at Drexel University in Philadelphia, PA, July 26-28.
Contact: firstname.lastname@example.org; http://east.usworker.coop/.
WOMEN/LYNNE STEWART- Radical Women is asking for support letters and cards to be sent to Lynne Stewart. Stewart is a civil rights attorney and political prisoner who is currently in jail. She has breast cancer and authorities have denied her request for transfer from her Texas prison to the New York City hospital where she received medical attention during a prior bout of breast cancer. Send messages and cards to: Lynne Stewart 53504-054, Federal Medical Center Carswell, P.O. Box 27137, Fort Worth, TX 76127.
Contact: 747 Polk Street, San Francisco, CA 94109; 415-864-1278; RadicalWomenUS@gmail.com; http://lynnestewart.org/; http://www.radicalwomen.org/.
HAITI/WOMEN - Haiti’s government is considering a legal reform measure that would prohibit and punish all sexual assault, including marital rape. MADRE and the International Campaign to Stop Rape & Gender Violence in Conflict are launching a petition to raise international support for this push to address violence against women in Haiti.
Contact: 121 West 27th Street, #301, New York, NY 10001; 212-627-0444; email@example.com; http://www.madre.org.
SYRIA/MIDDLE EAST - The Middle East Children’s Alliance (MECA) is currently seeking funds to assist more than 200,000 refugees fleeing violence in Syria.
FOLK FESTIVAL - The Falcon Ridge Folk Festival will be held August 2-4, in the Berkshires, NY.
Contact: http://www.falconridgefolk.com/; firstname.lastname@example.org.
WAR RESISTERS - The War Resisters League will hold its 90th anniversary conference, Revolutionary Nonviolence: Building Bridges Across Generations and Communities, August 1-4, at Georgetown University. The event will focus on the U.S.’ long history of antimilitarism.
Contact: 339 Lafayette Street, New York, NY 10012; 212-228-0450; email@example.com; http://www.warresisters.org.
POPULAR ECONOMICS - The Center for Popular Economics is holding its 2013 Summer Institute August 4-9 at Hampshire College in Amherst, MA. No background in economics is needed for this intensive training. This year’s theme is, The Care Economy: Building a Just Economy with a Heart.
Contact: Center for Popular Economics, PO Box 785 Amherst, MA 01004; 413-545-0743; firstname.lastname@example.org; www.populareconomics.org.
VETERANS - Veterans for Peace is holding the 28th annual convention August 6-11 in Madison, WI. This year’s theme is, Power To The Peaceful.
DEMOCRACY - The Democracy Convention will take place August 7-11 in Madison, WI. The convention brings together nine conferences including topics such as media, education, defense, race, environment and others.
MEN - The 38th National Conference on Men & Masculinity: Forging Justice: Creating Safe, Equal and Accountable Communities, presented in partnership with HAVEN, will be held in Detroit, MI, August 8-10.
Contact: email@example.com; http://www.nomas.org/.
OCCUPY - An Occupy National Gathering will be held in Kalamazoo, MI, August 21-25.
Contact: firstname.lastname@example.org; http://occupynationalgathering.net/.
COMMUNITIES - The Communities Conference is a networking and learning opportunity for co-operative or communal lifestyles, with workshops, events and entertainment; scheduled for August 30-September 2 at the Twin Oaks Community in Louisa, Virginia.
LABOR DAY - The 29th annual Bread and Roses Festival, a celebration of the ethnic diversity and labor history of Lawrence, MA, will be held September 2, in honor of the 1912 Bread and Roses Strike. There will be music, dance, poetry, drama, ethnic food, historical demonstrations, walking & trolley tours.
Contact: PO Box 1137, Lawrence, MA 01842; 978-794-1655; http://www.breadandrosesheritage.org/.
OCCUPY WALL STREET - September 17 is the two-year anniversary of the Occupy Wall Street movement. Events are planned in New York City and worldwide.
TEACHERS - The 13th Annual Conference, “Teaching for Social Justice: The Politics of Pedagogy,” will be held October 12 in San Francisco, CA. The free event features workshops, resources, and free childcare.
Contact: 415-676-7844; email@example.com; http://www.t4sj.org/.
HAITI - International Action, which brings clean water and chlorinators to Haiti, seeks office space capable of housing up to six people and their office equipment.
Contact: Zach Bremer, Zbrehmer@haitiwater.org; 202-488-0735; http://www.haitiwater.org/.
MEDIA - The Union for Democratic Communications and Project Censored are sponsoring a joint conference on media democracy, media activism and social justice to be held November 1-3 at the University of San Francisco. Proposals for presentations, workshops and panels from activists and critical scholars are invited.