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
HUMAN RIGHTS - The U.S. Human Rights Network will celebrate its 10th anniversary with the Advancing Human Rights 2013 Conference, December 6-8, in Atlanta, GA.
Contact: 250 Georgia Avenue SE, Suite 330, Atlanta, GA 30312; firstname.lastname@example.org; http:// www.ushrnetwork.org/.
AFRICAN/SOCIALIST - The Sixth Congress of the African People’s Socialist Party USA will be held December 7-11, in St. Petersburg, FL.
Contact: 1245 18th Avenue South, St. Petersburg, FL 33705; 727- 821-6620; info@aps puhuru.org; http://asiuhuru.org/.
SCHOOLS - The Dignity in Schools Campaign (DSC) will host a workshop on the DSC “Model Code on Education and Dignity: Presenting A Human Rights Framework for Schools” at the Mid-Hudson Region NY State Leadership Summit on School Justice Partnerships, December 11 in White Plains, NY.
Contact: http://www.dignityin schools.org/.
ANARCHIST/BOOKFAIR - The Humboldt Anarchist Book Fair will be held December 14, in Eureka, CA.
Contact: humboldtgrassroots @riseup.net; http://humbold tanarchist bookfair.wordpress. com/.
CLIMATE - The World Symposium on Sustainable Development at Universities is hosting a follow-up event to the 2012 Rio de Janeiro symposium. The gathering will be held in Qatar on January 28-30, 2014.
Contact: http://environment.tufts. edu/.
LABOR - The United Association for Labor Education (UALE) will host Organizing for Power: A New Labor Movement for the New Working Class in Los Angeles, March 26-29. Proposals are due December 15.
Contact: LAWCHA, 226 Carr Building (East Campus), Box 90719, Duke University, Durham, NC 27708-0719;lawcha @duke. edu; http://lawcha.org/.
MEDIA FELLOWSHIP - The Media Mobilizing Project is seeking applicants for the first annual Movement Media Fellowship Program. The Fellow will work with MMP to produce the spring season of Media Mobilizing Project TV. MMPTV is a news and talk show that tells the stories of local communities organizing to win human rights and build a movement to end poverty.
Contact: 4233 Chestnut St., Philadelphia, PA 19104; 215-821- 9632; milena@media mobilizing.org; http://www.media mobilizing.org/.
RACE - The 7th Facing Race: A National Conference will be held in Dallas, TX November 13-15, 2014. Organizers, educators, artists, funders and everyone interested in racial equity is invited to exchange best practices and learn about innovative models and successful organizing initiatives. Proposals must be submitted by January 24, 2014.
Contact: Race Forward, 32 Broadway, Suite 1801, New York, NY 10004; 212-513-7925; media @raceforward.org; http://race forward.org/.
VETERANS - They Were Soldiers: How the Wounded Return from America’s Wars - The Untold Story, by Ann Jones, is about the journey of veterans from the moment of being wounded in rural Afghanistan to their return home.
Contact: Haymarket Books, PO Box 180165, Chicago, IL 60618; 773-583-7884; http://www.haymarketbooks.org/.
LIBYA - Destroying Libya and World Order: The Three-Decade U.S. Campaign to Terminate the Qaddafi Revolution, by Francis A. Boyle, is a history and critique of American foreign policy from Reagan to Obama.
Contact: Clarity Press, Inc., Ste. 469, 3277 Roswell Rd. NE, Atlanta, GE 30305; 404-647-6501; email@example.com; http://www. claritypress.com/.
CHILDREN - Fannie and Freddie by Becky Z. Dernbach is about two bumbling villains who gamble away the savings of the people of Homeville.
Contact: fannieandfreddiebook @gmail.com; http://fannieand freddie.org/.
PROTEST/COMIC - Fight the Power!: A Visual History of Protest Among English Speaking Peoples, by Sean Michael Wilson and Benjamin Dickson is a graphic narrative that explains how people have fought against oppression.
Contact: Seven Stories Press, 140 Watts Street, New York, NY 10013; 212-226-8760; info@ sevenstories.com; http://www. sevenstories.com.
CHILDREN - Brave Girl by Michelle Markel and illustrated by Melissa Sweet is the true story of Clara Lemlich, a young Ukrainian immigrant who led the largest strike of women workers in U.S. history.
Contact: http://www.harpercollins childrens.com/Kids/.
FESTIVAL - The 2014 Queer Women of Color Film Festival will be held June 13-15 in San Francisco. The festival is currently accepting submissions until December 31.
Contact: QWOCMAP, 59 Cook Street, San Francisco, CA 94118-3310; 415-752-0868; firstname.lastname@example.org; http://www.qwocmap.org/.
IRAQ/REFUGEES - Ten years after the U.S.-led war in Iraq, thousands of displaced Iraqi refugees are still facing a crisis in the United States. The Lost Dream follows Nazar and Salam who had to flee Iraq in order to avoid threats by Al- Qaeda-affiliated groups and Iraqi insurgents that consider them “traitors” for supporting U.S. forces in Operation Iraqi Freedom.
Contact: Typecast Films, 888- 591-3456; info@type castfilms. com; http://type castfilms.com/.
HUMAN RIGHTS - Lyrical Revolt! III will be held December 4 in Syracuse, NY. The event will feature hip-hop musician Anhel whose album Young, Gifted, and Brown was just released. The event is sponsored by ANSWER Syracuse, Liberation News, and SyracuseHip Hop.com. Performers and artists are encouraged to send submissions.
Contact: email@example.com; http://www.answercoalition.org/syracuse/.
FOLK - Musician Painless Parker has released his album Music for miscreants, malcontents and misanthropes featuring “Fuck Yeah, the Working Class.”
Contact: firstname.lastname@example.org; http://painlessparkermusic.com/.
COMEDY - Political comedian Lee Camp’s new album Pepper Spray the Tears Away has been released.