Crime & Federalism

Lawyers and the First Amendment

Two Pennsylvania judges sold children into slavery in the infamous Cash-4-Kids scam.  By law, lawyers who appeared before those corrupt judges were not allowed to stop the human trafficking. Why do judges put self-interest above the public interest?

Suspicious things happen in courtrooms across the country. In one Pennsylvania juvenile court, two judges would send children to juvenile prisons when 99% of other judges would have issued probation as the strongest sanction. There wasn’t a lawyer who appeared before these judges who did not realize that the only explanation was corruption. Had any of these lawyers spoken out, they would have lost their ability to earn a living.

Unlike the rest of the public, lawyers have limited First Amendment rights. A lawyer may not demean judges, or lessen the public’s trust in the judiciary. The New York Times and Gasmo: For the Defense have excellent anecdotes.  Thus, even true statements are sancionable.

In once case, a lawyer called a judge a “evil witch.” The lawyer was reprimanded. Later, that same judge was suspended from the bench for being – you guessed it – an evil with. The lawyer spoke truth to power. That earned him a six-month break from the law.  

Calling a lawyer an “evil witch” on a blog is childish, and not the time of speech we should expect of professionals. Scott Greenfield would no doubt criticize the practice in a post, properly issuing a social sanction to a childish lawyer.  Childish conduct shouldn't earn a lawyer the loss of license for six months. The effect of such suspensions chills lawyer speech.  How close to the line would you go, knowing that you'd lose six months' of income for your speech?

Imagine you were a lawyer who appeared before those Pennsylvania judges. Having done juvenile law for years, and having had thousands of cases of experience to draw upon, you realized something: Only corruption could explain the judges' conduct.

You had no proof. You are not the FBI. You cannot subpoena bank records or install wire taps. Yet you know something was wrong. You log onto TypePad, reading to speak truth to power.

You publish a post indicating your extensive experience in juvenile cases. You produce data showing that its statistically impossible for those judges to be reaching the conclusions they have reached.  You conclusion: Corruption is the only explanation.

There is no doubt that the Pennsylvania State Bar would have come after you. You would be censured, or perhaps lose your law license.

"Sunlight is said to be the best of disinfectants; electric light the most efficient policeman," Supreme Court Justice Louis Brandeis observed.  It is lawyers who can shine the light on judicial corruption.  It is lawyers who are told to bury their lights under a basket.  It is lawyers who are reminded to shut off the lights.

If judges want to increase public trust, then they should – like the rest of us – earn the public’s trust.  Trust is earned by following the law.  Honest judges need not fear sunlight or electric lights.  Honest judges, then, should stop protecting dishonest judges.  Let lawyers speak.

Is "Hot Air" a Matter of Public Concern?

A Brooklyn prosecutor, Robert Reuland, wanted to hype his upcoming book.  Like most New York lawyers, he was prone to bullshit overstatement.  In an interview with New York magazine, he said of his burrough:

Brooklyn is the best place to be a homicide prosecutor [because] we've got more dead bodies per square inch than anyplace else.

His superiors got upset with this statement - first because it was false, and second because it made it seem like the lawyer was more interested in trying cases (for his own glory) than he was with the harm murder victims and their families suffered.  So they demoted him.

Was that overly harsh?  Sure.  It was a the type of silly overreaction government bureacrauts have every day.  But Reuland turned his demotion into a constitutional case.  And a split panel of the Second Circuit agreed with him in Reuland v. Hynes (here).

Brief summary of the law.
Government employees, unlike you and me, have limited First Amendment rights when discussing job-related topics.  Generally, a government employee's speech is free only when he is talking about a matter of public concern.  Courts will sift through the speech asking whether it was a matter of public, or private concern.  It's a sticky distinction, but an example helps clear the mud.

Imagine a prosecutor is required to work long hours but isn't given a raise.  He writes a letter to the editor complaining about his situation.  He doesn't note that his office is understaffed.  He just complains.  Now imagine a different prosecutor writes a letter to the editor noting that he was passed over for promotion because he was black - and that his supervisor has passed over several qualified black applicants.

Can you see the difference between complaining about a personal slight, and informing the public about a matter of public concern?

Assuming the employee's speech is a matter of public concern, the court will balance, under two leading Supreme Court cases (Pickering and Connick), the interests of the employee in commenting upon matters of public concern against the interest of the government/employer, in promoting the efficiency of the workplace.  In other words, even public-concern speech might lead to discipline if the speech prevents the government agency from getting its job done.

In reality, under Pickering and Connick, courts tend to ask this question: Was the speech more valuable than the harm it caused?  Thus, a police officer who discusses rampant corruption in his police department will likely be protected under the First Amendment, even if his speech causes substantial dispution.  In government-employee cases, speech is free only if it is valuable.

The split-panel's decision.
The split panel concluded that homicide rates are matters of public concern.  The court also held that the speaker's motive for speaking does not resolve the public-concern issue.  Thus, the fact that Reuland made his (false) statements only because he wanted to hype his book doesn't mean his speech is a matter of personal, rather than private concern.  [Ed's note: This is an important, if somewhat small, doctrinal development, and worth further exploration by a law student looking to write a law review article.]

Thus, Reuland's speech would be protected unless it was too disputive. Unfortunately, the panel does not apply Pickering balancing, as the defendant's trial lawyers waived the issue at trial.  (!)  Thus, given that murder-rate-related speech was a matter of public concern, the panel held that Reuland's First Amendment rights were violated when his supervisor punished him.

The dissent.
Judge Winter's dissent was powerful, and persuasive.  Although several pages long, its first sentence summarizes it brilliantly:

A prosecutor's statement to a magazine about homicide rates within his jurisdiction is not protected by the First Amendment when it was admittedly false, admittedly made without any belief of a basis in fact, and made to promote sales of the prosecutor’s novel.

The dissent should have carried the day.  Although murder rates are a matter of public concern, untruthful crime statistics is worthless speech.  The public did not benefit or learn anything from Reuland's speech.  Reuland was simply blowing hot air in an attempt to boost his book sales.

The First Amendment was not vindicated in Reuland v. Hynes.  Instead, the split panel allowed a lawyer who used his official office to hype his book, to reap a financial windfall.

Doe v. Gonzales: Disclosure under the Stored Communications Act

I would like to thank Mike for allowing me to post here.

On May 23, 2006, the Second Circuit Court of Appeals issued an opinion in Doe v. Gonzales. 2006 WL 1409351 (2d. Cir., May 23, 2006). This consolidated appeal issued rulings on two cases: Doe v. Ashcroft and Doe v. Gonzales. 334 F. Supp.2d 471 (S.D.N.Y. 2004);  F.Supp.2d 66 (D.Conn.2005). This case is interesting because it involves constitutional challenges to elements of the Stored Communications Act (SCA), which protects electronic data and stored messages from unauthorized access and disclosure.

§ 2709(a) of the Stored Communications Act (SCA) imposes a duty upon wire and electronic communication providers to comply with FBI requests for "subscriber information and toll billing records information, or electronic communication transactional records." As outlined in 2709(b), the subscriber requests are written requests in the form of a National Security Letter (NSL).

At the time of Ashcroft and Gonzales,  § 2709(c) of the SCA simply stated that:

“No wire or electronic communication service provider, or officer, employee, or agent thereof, shall disclose to any person that the Federal Bureau of Investigation has sought or obtained access to information or records under this section.”

Doe v. Ashcroft involved an internet service provider (ISP) that received a NSL requesting information on a subscriber. The plaintiff was notified of the nondisclosure requirement. The plaintiff was also told that he or she could not inform “any person” that access to the information was sought or obtained. The plaintiff challenged 2709(c) on First Amendment grounds. The District Court held that that 2709(c) violates the First Amendment because it was a content-based prior restraint on speech that was not sufficiently narrowly tailored to achieve a compelling governmental interest. 

In Doe v. Gonzales, a broadly worded NSL was sent to a library employee in charge of patron records. The plaintiff filed a complaint which argued that by prohibiting him or her from disclosing their identity as a recipient was a prohibition on constitutionally protected speech. The plaintiff asked for a preliminary injunction against enforcement of the gag order. The court granted the injunction; it found that: 1) the plaintiff showed irreparable harm (derived from suppression of speech) and 2) plaintiff's suit was likely to succeed on the merits (i.e., the statute was likely to be content-based, prior-restraint that violated plaintiff's First Amendment rights). 

Significant amendments were made to § 2709 on March 9, 2006. These changes were apparently made to address the defects identified by the Ashcroft court. 2709(c) now includes four sections. 2709(c)(1) says that under certain conditions certified by the Director of the FBI or other authorized personnel, “no wire or electronic communications service provider, or officer, employee, or agent thereof, shall disclose to any person (other than those to whom such disclosure is necessary to comply with the request or an attorney to obtain legal advice or legal assistance with respect to the request) that the Federal Bureau of Investigation has sought or obtained access to information or records under this section" (emphasis added).

2709(c)(2) now requires recipients of NSLs to be notified of the nondisclosure requirement. 2709(c)(3) requires NSL recipients to notify other parties assisting in compliance, including attorneys, of the nondisclosure requirements. 2709(c)(4) requires anyone making a disclosure under 2709(c) to identify the target of the disclosure to the FBI director or other authorized personnel before the disclosure is made.

New statutes were also created and others were modified to enhance 2709(c). 18 U.S.C § 3511 now provides a mechanism for judicial review of NSLs, including requests under 2709(b). 18 USC 1510 was modified to impose penalties for disclosure in some situations. 1510(e) provides that anyone who has been notified of the nondisclosure requirements of 2709(c)(1) and "knowingly and with the intent to obstruct an investigation or judicial proceeding violates such prohibitions or requirements applicable by law to such person shall be imprisoned for not more than five years, fined under this title, or both."

These changes were significant enough for the Second Circuit Court of Appeals to vacate and remand the First Amendment portion of Ashcroft to the District Court. Gonzales was dismissed as moot. In the near future, I hope to dig deeper and examine how the District Court might view the First Amendment challenge in Ashcroft in light of the aforementioned statutory changes.

Campaign Contributions, Bribery, and the First Amendment

Peter Henning has a fascinating post entitled Prosecuting Campaign Contributions as Bribes.  The post was interesting to me because the federal bribery statute is a hobby horse of mine; and the difference between bribe and campaign contribution is knotty enough to keep me interested.

I've even been working on a paper where I make this claim: The federal bribery statute is unconstitutional under the First Amendment because it's unconstitutionally overbroadbreath, namely, it criminalizes garden-variety campaign contributions. 

You can read the draft here.  This is a very rough draft (it's almost more of an outline than a draft article) that I haven't been able to get to for a bit.  Fortunately (or not!), I'm busy enough making money that I don't have much time to non-blog-related scholarship.  Anyhow, if you have any substantive comments (saying, point-x is weak is not helpful, since, like I said, it's a draft, so there are a lot of weak points), I'd love to hear them.

Download federal_bribery_statute_campaign_contributions_and_the_first_amendment.pdf

Smoking Bans and Free Speech

If the Boy Scouts can, contrary to state law, exclude homosexuals from serving as Scoutmasters, then shouldn't smoking clubs have a solid claim against Washington State's recent anti-smoking legislation; which, among other things, makes it illegal for members of private clubs to smoke indoors?  After all, smoking clubs in Washington will likely fold, as what's the point of a smoking club without the smoke?

The argument would come down to this: We associate to smoke.  Smoking isn't just something we do, it's something we say.  By smoking we tell the world that we don't care for the bourgeois-busybody class.  Washington's law prohibits us from associating, because it denies us the right to do something essential to our group's mission.

Workplace Speech

Today the Eleventh Circuit handed down an interesting - though not groundbreaking - case analyzing the right of a government employee to be free from speech-related retaliation.  Cook v. Gwinnett, No. 04-12914 (11th Cir. June 29, 2005).

Speech and Association Hybrid Claims

This civil rights case stems from a community college instructor’s claim that the college retaliated against her after she attended WTO protests with some of her students. Her claim is a hybrid one—it involves both speech and associational rights under the First Amendment. We are presented with an issue of first impression, namely the appropriate test for benchmarking this hybrid right. We conclude that this case should be evaluated under the balancing test established in Pickering v. Board of Education, 391 U.S. 563, 568 (1968), and that under Pickering, the college’s legitimate safety and pedagogical concerns outweighed the instructor’s rights. We affirm the district court’s grant of summary judgment in favor of the college.

Hudson v. Carven, No. 03-35408 (9th Cir. Apr. 6, 2005).

Speaking Through the Wall of Silence

A prison guard broke the wall of silence, he was harassed, and then constructively discharged.  He brought a section 1983 action, alleging that he was fired in retaliation for engaging in protected speech.  As a public employee, should his speech be balanced under Pickering and Connick?  No. Baron v. Suffolk County Sheriff's Department, No. 03-2718 (1st Cir. Mar. 29, 2005).

The distict court determined at summary judgment that "the internal workings of the Sheriff's Department" were a matter of inherent public concern, and thus found that Baron's speech was protected without engaging in an extended analysis of its form and context. The Department takes issue with this conclusion, arguing that the content of Baron's expression was not a matter of inherent public concern because it dealt exclusively with internal working conditions at the House of Correction. We disagree.

Slip op. at *12-13.  The panel distinguished Connick, writing:

Retaliation against officers who breach a code of silence among their colleagues at a county House of Correction implicates the public interest in a way that morale among Assistant District Attorneys does not.

Id. at *15.  Thus, the plaintiff's free speech rights need not be balanced against the state's interest in maintaing order and discipline.

(Hat tip: AL&P).

Masturbation, Civil Servants, and Speech

Today the Court issued one opinion. 
San Diego v. Roe, No. 03-1669 (per curiam).

A police officer videotaped himself in uniform masturbating.  The officer then sold these images on eBay.  In his eBay user profile, Doe took measures to affirmatively identify himself as a police officer.  Namely, his eBay monkier was a play on a police radio call; he sold official San Diego Police Department uniforms; and his profile identified him as a law enforcement agent.

He was fired.  The officer then sued the city alleging violations of his free speech rights. 

The lower court denied the city's MSJ, reasoning that "Roe’s conduct fell within the protected category of citizen commentary on matters of public concern. Central to the Court of Appeals’ conclusion was that Roe’s expression was not an internal workplace grievance, took place while he was off-duty and away from his employer’s premises, and was unrelated to his employment."  Id. at *3.

A per curiam Court reversed.

Although the government may impose speech restrictions on its employees that would be unconstitutional if applied to a non-employee, the "Court has recognized the right of employees to speak on matters of public concern, typically matters concerning government policies that are of interest to the public at large, a subject on which public employees are uniquely qualified to comment."  Id. at *3. 

Thus, the Court applies the Pickering balancing test that "requires a court evaluating restraints on a public employee’s speech to balance “the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees."  Id. at *5.  But "a public employee’'s speech is entitled to Pickering balancing only when the employee speaks “as a citizen upon matters of public concern” rather than “as an employee upon matters only of personal interest."  Id. at *6-7.

Here, "Roe’s activities did nothing to inform the public about any aspect of the SDPD’s functioning or operation. Nor were Roe’s activities anything like the private remarks at issue in Rankin, where one coworker commented to another co-worker on an item of political news. Roe’s expression was widely broadcast, linked to his official status as a police officer, and designed to exploit his employer’s image."  Id. at *7. 

Rather, Roe's "speech" was a matter of pubic, not public concern.

Free speech rights of government employees

A police officer who is demoted for testifying in a hearing that another police officer did not take care of or properly maintain his car can not state a First Amendment retaliation claim.  Kirby v. City of Elizabeth City, No. 03-2035 (4th Cir., Nov. 3, 2004).  Per Judge Wilkins (for Williams, J. and Hansen, S.J.):

It is well settled that citizens do not relinquish all of their First Amendment rights by virtue of accepting public employment. Nevertheless, the government, as an employer, clearly possesses greater authority to restrict the speech of its employees than it has as sovereign to restrict the speech of the citizenry. A determination of whether a restriction imposed on a public employee’s speech violates the First Amendment requires a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees. This balancing begins with an inquiry into whether the speech at issue was that of a private citizen speaking on a matter of public concern. If so, the court must next consider whether the employee’s interest in his First Amendment expression outweighs the employer’s interest in what it has determined to be the appropriate operation of the workplace.

To determine whether speech involves a matter of public concern, we examine the content, form, and context of the speech at issue in light of the entire record. Speech involves a matter of public concern when it involves an issue of social, political, or other interest to a community.  The public-concern inquiry centers on whether the public or the community is likely to be truly concerned with or interested in the particular expression. Whether speech addresses a matter of public concern is a question of law for the court, and thus we review the matter de novo.

Id. at *6-7.

Just because an opinion is given in a public hearing does not mean it is a matter of public concern.

[A] police officer did not address a matter of public concern when he stated during a coworker’s employment hearing that he did not know whether marijuana found in his van belonged to the coworker. In so doing, we held that it was irrelevant for first amendment purposes that the statement was made in the course of an official hearing because the statement was made not to further any public debate, but only to further the interests of the two officers involved.

Id. at *7.