The New York Times reports on a complicated Supreme Court case involving the First Amendment rights of a public employee in Alabama (h/t Mark Ames). The case boils down to this: Edward Lane, a state employee, was subpoenaed to testify at a federal trial about the corruption of another state employee. As a result of his testimony, Lane was fired by his boss. Lane claims that his First Amendment rights were violated; the lower courts have ruled against him. Now the Supreme Court is considering the case.
But this in the Times report is what caught my eye:
The federal appeals court in Atlanta said it was unnecessary to decide who was right because public employees have no First Amendment protections in any event for statements they make as part of their official duties.
Since “the record fails to establish that Lane testified as a citizen on a matter of public concern,” the appeals court said in an unsigned opinion, “he cannot state a claim for retaliation under the First Amendment.”
While it seems that the Supreme Court intends to uphold the claim that employees like Lane do have such First Amendment rights (though it’s not clear whether the Court will uphold the claim that Lane himself had such a right at the time of his testimony, or at least that it was a “clearly established” right at that time), I’m struck by this disjuncture between the First Amendment rights one is said to have as a citizen versus the First Amendment rights one does not have as an employee of the government. The federal appeals court puts the contrast clearly:
Although the district court couched its decision in terms of qualified immunity, it determined that Lane’s speech was made pursuant to his official duties as CITY’s Director, not as a citizen on a matter of public concern. We reach the same conclusion.
To establish a claim of retaliation for protected speech under the First Amendment, a public employee must show, among other things, that he “spoke as a citizen on a matter of public concern.” See Garcetti v. Ceballos, 126 S.Ct. 1951, 1958 (2006) (a decision further restricting public employees’ protected speech). A government employee whose speech is made pursuant to his official duties is not speaking as citizen. See id. at 1960; Battle v. Bd. of Regents, 468 F.3d 755, 760 (11th Cir. 2006). Even if an employee was not required to make the speech as part of his official duties, he enjoys no First Amendment protection if his speech “owes its existence to [the] employee’s professional responsibilities” and is “a product that ‘the employer itself has commissioned or created’”. See Abdur-Rahman v. Walker, 567 F.3d 1278, 1286 (11th Cir. 2009)
I’ve reported on this blog many a time about the absence of First Amendment protections for workers in the private sector. And though I’ve talked less about this, some of that also holds true for workers in the public sector.
But what strikes me about this case is how the state’s investment in maintaining the hierarchical relationship of employer to employee (or, at least, its investment in not extending basic constitutional rights to the employee) creates a schizophrenia within the state. On the one hand, the state compels Lane to testify at a federal trial about the corruption of a public employee because, presumably, the state has a vested interest in that testimony; on the other hand, the state does not believe its own constitutional protections protect Lane when he performs what the state compels him to perform. As the federal appeals court puts it:
That Lane testified about his official activities pursuant to a subpoena and in the litigation context, in and of itself, does not bring Lane’s speech within the protection of the First Amendment.
According to the Times, even Chief Justice Roberts seemed to think this was a bridge too far:
Chief Justice John G. Roberts Jr. appeared sympathetic to Mr. Lane. “What is he supposed to do?” he asked Mark T. Waggoner, a lawyer for Mr. Franks [the boss who fired Lane]. If Mr. Lane testified truthfully, the chief justice said, he could be fired. If he lied or failed to appear, he could be punished.
Mr. Waggoner said that he “would never suggest that anybody not comply with a subpoena, comply with an investigation or testify truthfully.”
The chief justice responded, “But you are suggesting he can be fired if he does it.”
The whole distinction between the freedom we enjoy as citizens versus the non-freedom we suffer as private individuals (albeit individuals employed by the government) reminds me of Kant’s essay “What is Enlightenment?” Attempting to delineate the various uses and imports of reason, Kant make a sharp distinction between the importance and protection of reason in the public sphere and the absence of that protection in the private sphere. More specifically, he makes a distinction between the public use of reason and the private use of reason.
For enlightenment of this kind, all that is needed is freedom. And the freedom in question is the most innocuous form of all—freedom to make public use of one’s reason in all matters. But I hear on all sides the cry: Don’t argue!The officer says: Don’t argue, get on parade! The tax official: Don’t’ argue, pay! The clergyman: Don’t argue, believe!…All this means restrictions on freedom everywhere. But which sort of restriction prevents enlightenment, and which, instead of hindering it, can actually promote it? I reply: The public use of man’s reason must always be free, and it alone can bring about enlightenment among men; the private use of reason may quite often be very narrowly restricted, however, without undue hindrance to the progress of enlightenment. But by the public use of one’s own reason I mean that use which anyone may make of it as a man of learning addressing the entire reading public. What I term the private use of reason is that which a person may make of it in a particular civil post or office with which he is entrusted.
In other words, rather than distinguishing between institutional spheres of public versus private, we might say that Kant is distinguishing between our different orientations of mind. When we reason publicly, we are thinking of the public; when we reason privately, we are thinking about narrower matters. Regardless of where we are (though I think Kant believes that where we are matters a great deal).
But even if we adopt that more generous reading, one could make the case that the judges on the federal appeals court are acting like good Kantians. As they write:
Although not dispositive, we consider it pertinent that the subject matter of Lane’s testimony touched only on acts he performed as part of his official duties. See Abdur-Rahman, 567 F.3d at 1282. As in Morris, nothing evidences that Lane testified at Schmitz’s trial “primarily in [his] role as a citizen” or that his testimony was an attempt to comment publicly on CITY’s internal operations.
In other words, if Lane had been speaking out or to the public about taxes, say, or even about government corruption, his First Amendment rights might have come into play (the same, of course, cannot be said if he were an employee in the private sector). But because he was speaking about matters pertaining and pursuant to his job, his First Amendment rights are irrelevant. Even though the matters he was speaking of were of vital interest to the government and the public. The fact that he was speaking as a job-holder about his job rather than as a citizen about public issues is what matters.
This distinction, of course, was precisely what Marx was targeting in his essay “On the Jewish Question.” Thanks to Piketty, Marx the economist is back in the news. But before he turned to economics, Marx was a political theorist of the disjunctures the modern state creates between our emancipated lives as public citizens and our dominated lives as private men and women. Though he was mostly focused in “On the Jewish Question” on the question of religion (and sometimes in yucky ways), the distinctions he drew there apply more generally to the divisions between private man—residing in “the sphere of human needs, labour, private interests and civil law”—and “political man,” the citizen who “is only abstract, artificial man, man as an allegorical, moral person.”
Liberalism, Marx claimed, had emancipated the second (sort of); the real task was to emancipate the first.
Human emancipation will only be complete when the real, individual man has absorbed into himself the abstract citizen; when as an individual man, in his everyday life, in his work, and in his relationships, he has become a species-being; and when he has recognized and organized his own powers (forces propres) as social powers so that he no longer separates this social power from himself as political power.
Tell it to the judge.
Update (5:30 pm)
My CUNY colleague Ruthann Robson has a useful analysis of the case over at SCOTUSblog. (By the way, once I’m in a position of power , I’m going to ban all uses of SCOTUS and POTUS and FLOTUS and other OTUS’s. I feel about those words the way I feel about the phrase public intellectual.)