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Letters
Friday, February 16, 2007 12:00 AM

Why I had to quit the John Edwards campaign

During my brief tenure as blogmaster for a Democratic presidential contender, I experienced the right-wing smear machine firsthand

The letters thread is now closed.

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Friday, February 16, 2007 02:11 PM

Good News Employee Ass'n v. Hicks, 2005 WL 351743, N.D.Cal.,2005

This is from the district court opinion. The court did not rule that it was hate speech, and your ignorant assessment of it as that REALLY irks me. It seems that you missed out on some crucial facts:

"The facts are not in material dispute. GNEA's stated purposes are “[t]o celebrate our Faith and Liberties by preserving the integrity of the Natural Family, Marriage and Family values”; “[t]o provide a forum for people of faith to express their views on contemporary issues of the day”; and “[t]o oppose all views that seek to redefine the Natural Family and Marriage.” In its “Statement of Faith,” GNEA explains that “we believe the Natural Family is defined as a man and a women their children by birth or adoption, or the surviving remnant thereof (including single parents)”; that “[w]e believe Marriage is defined by a union between a man and a woman according to California state law”; and that “[w]e believe in Family Values that promote abstinence, marriage, fidelity in marriage and devotion to our children.” Plaintiffs' deposition testimony confirms the anti-homosexual import of their definitions of “natural family,” “marriage” and the meaning of the flyer's exhortation to “preserve our workplace with integrity.”

The flyer came to the attention of Judith Jennings (“Jennings”), a lesbian employee in CEDA who used the copy machine near which the flyer was posted. Jennings felt “targeted” and “excluded.” Shortly after seeing the flyer, Jennings spoke with Rederford... This conversation left Jennings “feeling anxious about working in the same office as [plaintiffs]” and she “could not believe that [she] worked with someone who condemned homosexuals like [her] so much.” Jennings and Rederford worked near one another and spoke with some frequency. After the conversation, Jennings was “scared,” did not talk to Rederford any more and their “relationship really changed.” Jennings decided to complain to the city attorney's office. She complained not only about the flyer, but also about earlier episodes of distribution of anti-homosexual materials, at least one of which involved plaintiffs.

Jennings' complaint was investigated by Joanne Braddock, who was the administrative services manager in CEDA, ... They interviewed Jennings, who seemed “upset and distraught” and “visibly nervous and shaken,” and Braddock discovered the flyer posted in several locations other than near the copier,. “After the investigation was complete, [Braddock] received an order from the City Attorney's office to take the * * * flyer down. The Plaintiffs' flyer violated AI 71. “AI 71” is an abbreviation for “Administrative Instruction 71,” a personnel policy promulgated by the City Manager of Oakland, entitled “Equal Employment Opportunity / Anti-Discrimination / Non-Harassment Policy and Complaint Procedure.”"

The court, after wading through a whole lot of proceduralissues, arrives at the core of the Pickering balancing test:

"...the Ninth Circuit has interpreted Pickering and Connick to require the governmental employee to show that: (1) her speech was on a matter of public concern and thus was constitutionally protected; and (2) that the speech in question was a “substantial or motivating factor” for the adverse employment action. If the employee fails to demonstrate that the speech addresses a matter of public concern, then the claim should be dismissed without further inquiry. . Should the employee make the first two showings, the employer then must show that its “legitimate administrative interests” in promoting workplace efficiency outweigh the employee's interest in freedom of speech. The inquiry into the protected status of speech is one of law, not of fact.

You must understand that all of these terms, especially whether speech is "of public concern" have specific legal meanings and dozens of cases delineating the fine line between "of public concern" and not "of public concern." The court quickly acknowledges that the speech is of public concern, and moves on to the balancing between the plaintiff's right to speak, and the employer's right to not have a disturbance. I can't very well post the whole case, so here is the end:

Having laid out plaintiffs' and defendants' competing interests, the court must strike the balance called for by Pickering. Neither side has presented a strong case. But, the facts being undisputed, the court must resolve the question of law posed by Pickering. The interests on both sides are slight: On the one hand, defendants' restriction of plaintiffs is far from a wholesale muzzling, but on the other hand, the suppressed speech was not patently inflammatory “fighting words.” To be sure, it caused friction in the workplace, but there is a difference between episodes of friction-which are the daily incidents of life in a pluralistic society-and disruption-which impairs the government's ability to discharge its duties to its citizens. The City must tread carefully when it exercises its authority to suppress its employees' speech.

Because the flyer plainly addresses a matter of public concern, it is defendants' burden to show that the City's interest outweighs plaintiffs' interest. This balance must be resolved in the City's favor for two reasons. First, plaintiffs' interest in this particular channel of communication is vanishingly small. It is undisputed that plaintiffs may promote GNEA outside of work and may do so even at work under proper conditions. Plaintiffs do not have a privileged First Amendment interest in communicating their message to their officemates, for their First Amendment rights derive from their status as citizens, not their status as employees...

The second reason that defendants prevail is that their response to Jennings' complaint-removal of the flyer without any adverse employment action against plaintiffs-was a narrowly tailored and proportionate response to the actual workplace disruption or, perhaps better described, distraction. An actual adverse employment action against plaintiffs would very likely not be justified on these facts, and the City would be well to consider this for the future. But the City does have an “administrative interest” in avoiding situations that distract employees from their jobs. Pickering counsels that public employers must, of necessity, be afforded some leeway in fixing their employees' attention on their tasks, free from upset stemming from public controversies having no bearing on the work of the employer.

Friday, February 16, 2007 02:23 PM

Every Time I Clicked On One of the Pandagon Links...

...I got some species of this:

Warning: fopen(/home/pandagon/public_html/wp-content/cache/wp_cache_mutex.lock) [function.fopen]: failed to open stream: Permission denied in /home/pandagon/public_html/wp-content/plugins/wp-cache/wp-cache-phase2.php on line 79

Couldn't write to: /home/pandagon/public_html/wp-content/cache/wp-cache-2671551514fa35dff94216d86fdb164c.html

Warning: flock(): supplied argument is not a valid stream resource in /home/pandagon/public_html/wp-content/plugins/wp-cache/wp-cache-phase2.php on line 88

Warning: fopen(/home/pandagon/public_html/wp-content/cache/wp-cache-2671551514fa35dff94216d86fdb164c.meta) [function.fopen]: failed to open stream: Permission denied in /home/pandagon/public_html/wp-content/plugins/wp-cache/wp-cache-phase2.php on line 223

Warning: fputs(): supplied argument is not a valid stream resource in /home/pandagon/public_html/wp-content/plugins/wp-cache/wp-cache-phase2.php on line 224

Warning: fclose(): supplied argument is not a valid stream resource in /home/pandagon/public_html/wp-content/plugins/wp-cache/wp-cache-phase2.php on line 225

Warning: flock(): supplied argument is not a valid stream resource in /home/pandagon/public_html/wp-content/plugins/wp-cache/wp-cache-phase2.php on line 97

Anybody else getting this?

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