In my post on Garcetti v. Ceballos, a lot of commenters are wondering why this is a First Amendment issue at all. I am wondering why this is so difficult to understand.

Put simply, Ceballos alleges that officials of the government punished him for expressing a particular viewpoint regarding a matter of significant public concern.

Read that sentence. How is that not a claim that raises at least potential First Amendment issues?

Xrlq complains that public employees should not have greater rights than private employees. We don’t. We all have the same right: not to have the government treat us badly based on the viewpoints we express.

Indeed, government employees enjoy this right to a lesser extent, because it’s easier for the government to punish us for the content of our speech when it employs us. Case law does indicate that the state has a freer hand to restrict speech when it acts as an employer. But this ability to restrict its employees’ speech is not unlimited. As Marty Lederman explains:

The state has broader discretion to restrict speech when it acts in its role as employer, but the restrictions it imposes must be directed at speech that has some potential to affect the state employer’s operations.

Lederman points to the case of Givhan v. Western Line Consol. School Dist., 439 U. S. 410 (1979), which was not overruled by Ceballos. Givhan

provided First Amendment protection to an English teacher who had raised concerns to the principal about racism in her school’s employment practices.

What Ceballos did was give unlimited discretion to the state to retaliate against employee speech that is made pursuant to the employee’s official duties — as opposed to the speech in Givhan, which was related to the employee’s job, but still protected.

As Lederman sums it up:

So, it appears that if one’s duties are to expose wrongdoing in the workplace, such exposure is entitled to no constitutional protection, but that if an employee whose duties do not involve such whistleblowing makes the exact same complaint, then Pickering/Connick [balancing test] analysis still applies.

You might agree with this rule, but it’s a new rule, and not one obviously mandated by historical First Amendment precedent.

The Supreme Court yesterday decided the case of Garcetti v. Ceballos, which addresses the extent of First Amendment protection for speech by government employees.

In a nutshell, Ceballos said that he exposed police dishonesty in a memo to supervisors, and was punished for it. And the Court said by a 5-4 decision that this did not violate the First Amendment.

I disagree.

Details in the extended entry.

(more…)

Whee! It’s another Big Media portrayal of Hillary-as-centrist. Before it was the L.A. Times (see here and here). Today it’s the Washington Post. This one is actually a little more nuanced than the L.A. Times was, but it still basically maintains the fiction that, as the headline puts it, she is “A Politician Not Easily Defined.”

Depends on whom you ask. It’s easy for me.

(Via Allah.)

I don’t have the time or inclination to do a full roundup of all the posts here from the three-day weekend. That’s why God put a scroll dial on your mouse. But I will note a couple of (hopefully) interesting posts, for the weekday-only readers:

• “The Power of the Jump”™ was featured in two posts this weekend. One was about the L.A. Times’s decision to highlight the fact that women “routinely” serve more time in jail under the L.A. County Sheriff’s early release policy. On the back pages, we learn that men have also “routinely” served more time as well.

• In a second “Power of the Jump”™ post, I note that the paper reports on whether a jail inmate’s death was a suicide, or the result of beatings and neglect by jail personnel. Only the back pages do we learn that the man was suicidal, and had twice previously tried to commit suicide.

• I rant about the Gang of 14 capitulation deal and the Republicans’ decision to fold on several controversial nominees — at least for now (which means, with a disastrous 2006 election, forever).

• Did you know Bill Clinton has had a condom named for him in China? The editors of the Los Angeles Times consider that an important qualification for his candidacy for U.N. Secretary-General.

• Plus: John Kerry is back with more on the Swift Vet allegations — which gives us a chance to refight all those old battles. It’s like it’s 2004 all over again!

So yesterday I tried to put the kids’ swingset together. I was doing pretty well, until I got to a part in the instructions where there have to be screwholes to put in the screws — and, no screwholes.

I hate the instructions that come with these things: a bunch of pictures of some guy putting it together, with almost no words to walk you through it. I’m almost 90% positive there have to be these screwholes, but they don’t say so. So 10% of me says: who knows?

Oh well, it was a nice day anyway.

What do Chief Justice Roberts, Nino Scalia, and Sam Alito have in common — other than being right-wing reactionary Supreme Court Justices, that is?

They all like Schiltz.