What is Enlightenment when the State is Schizophrenic? It’s The Jewish Question!

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.)


  1. Critical Reading April 29, 2014 at 2:24 pm | #

    He is compelled to testify (on pain of legal sanction), he testifies truthfully (I assume), he is fired. What were the grounds for terminating him? That he testified truthfully? That he testified at all? Or are there no grounds?

  2. calling all toasters April 29, 2014 at 2:56 pm | #

    Nice post, except…
    please don’t use “schizophrenic” when you mean “hypocritical” or “has a double standard” or “contradicts itself” or “is ambivalent” or “creates a Catch-22.” I know a lot of people do it. But we’ve got 3 million people in this country suffering terribly from schizophrenia, and the vast majority of their countrymen (a) believe they know what it is and (b) are entirely wrong about that.

  3. jonnybutter April 29, 2014 at 8:27 pm | #

    please don’t use “schizophrenic” when you mean “hypocritical” or “has a double standard” or “contradicts itself” or “is ambivalent”

    The problem is that most of those don’t convey the same meaning. ‘Contradicts itself’ is close, but doesn’t really have the very same meaning. Almost the same meaning would be ‘split personality’, since that is one personality split against itself. But it doesn’t have the zing! Can’t we have the use of that metaphor qua metaphor? I think most people who would use it know that it is a metaphor and not a literal diagnosis. Honest question.

    • calling all toasters April 30, 2014 at 10:28 am | #

      Then the term is “split personality.” I understand that there’s a need for “zing!” but the whole idea of using a clinical term is to show off that you know the vocabulary– that several features can be boiled down to a single term, and that both you and your readers are privy to that knowledge. Not so bad in itself, but in this case the “knowledge” is wrong, and already quite common.

      • jonnybutter April 30, 2014 at 2:03 pm | #

        the whole idea of using a clinical term is to show off that you know the vocabulary

        No. The idea is to use the term precisely NOT in a clinical sense without any pretense. A personality divided against itself is such a deeply human concept that I think we feel the need for the metaphor. It’s up to individual writers I guess, but I think there’s at least a case to be made for not giving up the term.

        BTW, I wonder if the misunderstanding you cite is as common as you think. I have known the difference between the clinical diagnosis and the metaphorical term for many years, and I’m just a guy (not a medical pro).

        oh well

      • calling all toasters April 30, 2014 at 3:07 pm | #

        “I wonder if the misunderstanding you cite is as common as you think.”

        Well, I teach about this stuff, and my undergraduates usually have it wrong. And once the wrong idea has been planted it is very hard to uproot.

        “Can’t we have the use of that metaphor qua metaphor?”

        It would be different if the word used in the metaphor reflected some underlying reality– this one does not. And it’s hurtful to a non-trivial part of the population. Are we OK with calling someone who is uncoordinated “palsied”? Maybe, if it’s done in a joking and friendly way. How about if we use it inaccurately and call someone who is illiterate “palsied”? Or someone who has done something unjust? I submit that it automatically keeps its hurtful quality, while debasing the meaning of the word.

        And I’m not one of those people who is against letting people know what their clinical label is; I think is does more to empower them than it does to depress them. And it allows them to let people into their lives simply by confiding. But I can’t imagine someone with schizophrenia doing this. That’s part of the reason there’s a campaign now to change public understanding of it– the people with it are viewed as dangerous (some certainly are) and perverse (no more than others, I guess). The continual tying of it to multiple personalities is the reason this pushback is needed, but isn’t needed for other mental disorders.

      • jonnybutter April 30, 2014 at 3:56 pm | #

        my undergraduates usually have it wrong.

        Do they have it wrong in the (metaphorical) sense we are talking about, or do they have it wrong some other way, or vague? I would think that the more common hurtful insult would be calling someone ‘schizo’ – which would not particularly mean ‘a personality split against itself’. It would be just a vulgar way to call someone crazy. It’s hurtful because it’s so thoughtless. I would be 100% in favor of people not saying that out of sensitivity.

        It would be different if the word used in the metaphor reflected some underlying reality– this one does not.

        But this word does reflect ‘some underlying reality’: the unsynthesized dialectical personality. It just doesn’t describe the clinical diagnosis. The word does come from the Greek for ‘split’.

        I don’t know CAT. I don’t like the idea of hurting people, especially those who already have a serious load to bear. But I think the metaphor abides because it does describe something very real.

      • calling all toasters April 30, 2014 at 5:16 pm | #

        But this word does reflect ‘some underlying reality’: the unsynthesized dialectical personality.

        But that,of course,has nothing to do with the condition of schizophrenia, which is essentially a disorder of psychosis and dementia. Maybe we should call such a phenomenon “borderline-like,” but there is no excuse (other than a cultural legacy of misguided pulp fiction and B movies) to call it “schizophrenic.”

        On a tangentially related note, the idea of a “divided mind” is one that should probably go, anyway. We’ve had surgeries where brains have literally been split, and we see nothing of the sort implied by that term. Have moods or outlooks that are described as “cyclical” would make much more sense.

      • calling all toasters April 30, 2014 at 6:25 pm | #

        Oh, and FWIW, my undergrads come in believing that the disorder is one of split personality.

  4. BillR April 29, 2014 at 8:45 pm | #

    The quality of translation is critical in appreciating Kant’s essay. The word “minority” was used in the best of them and searching for that I came across the following:


    It’s sparkling language and imagery are in stark contrast to Foucault’s effort at commemorating the 200’th anniversary of Kant’s essay:


  5. BillR April 29, 2014 at 10:36 pm | #

    Speaking of the Enlightenment, Marx, and a lefty person named Corey, just came across the following:

    …Lewis Corey, a non-communist socialist writer, but in the Depression, like so many other left-wing intellectuals, grew closer again to the Party. In a three-part series in The Nation in 1935, “The Crisis of the Middle Class,” Corey devoted an essay each to capitalism, fascism and socialism. In the final installment, Corey wrote, regarding fascism, that “the answer to the new barbarism must be a new Enlightenment…”


  6. NathanH April 30, 2014 at 5:00 am | #

    If the difference between the Private and the Public individual is indeed an abstraction, then it can’t in my opinion be “grounded” in Being, so the distinction is irrational to me, and we’re probably better off without it. I might also note that Prof. Robin, having declared the “Jewish Question” to be off limits at this venue, should take the honourable and logical step and ban himself from his own blog.

  7. Roquentin April 30, 2014 at 8:14 am | #

    On the subject of enlightenment and Kant, I can’t help but think of Adorno and Horkheimer’s Dialectic of Enlightenment and the idea that enlightenment already contains within itself barbarism. More specifically the section “Juliette: Enlightenment and Morality” where it is argued that the Marquis De Sade is purest fulfillment of Kant’s ideals (a sentiment shared by Jacques Lacan). Reason can serve barbarism just as easily as enlightenment.

  8. jonnybutter April 30, 2014 at 8:57 am | #

    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.

    Parenthesis often signals concentrated meaning (in English anyway), while acronymization hides or drains meaning, IMHO. So I’m with you on this, but would allow SCROTUS.

  9. rly1987 May 15, 2014 at 2:41 pm | #

    Buddhist-style enlightenment is the only true enlightenment, in my opinion. I feel that word enlightenment is thrown around for other things to give a guise of intelligence or sophistication when something has no real grounding but lots of ostentation.

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