Online Exclusive

Zip It or Loose It

“The mind is a wonderful thing.  It starts working the minute you’re born and never stops working until the moment you get up to speak in public.”   - Unknown

TIME Magazine revealed last week that their “Person of the Year” was “The Protestors”.  In America they’re known as the “1%’ers”, “Occupy Wall Street Movement”,  “Vanishing Middle Class” or however you want to identify this leaderless grassroots organization with a common agenda.  As we’ve witnessed since this past September, standing across from the protestors is the “thin blue line”.  Many of you reading this may have stood there last night.  I’ve stood their several times.  Not fun.  However, let’s face it do these people have a point?  Maybe the messages they send are confusing and unorganized, but generally the one commonality for every occupy group everywhere is that people are angry, very angry. 

NBC Nightly News, Thursday, 12/15/11, devoted special airtime to interviewing “the pollsters” who can take the pulse of America and their assessment was dire.  They were forecasting that this summer (Republican and Democratic National Conventions + Massive Public Discontent followed by high unemployment) could be a repeat performance of the summer of 1968.  I wasn’t around then, but those cops I spoke to about that era recall vividly massive civil unrest, cities on fire across the Nation, and “a feeling of hopelessness”, Nation Guard deployed, etc.  Did I mention that the NBC professional pollsters found that the average American (70% actually) thinks that our current Congress “is the worst in U.S. history”?  This Congress had to work hard to get that distinction and that is quite an accomplishment.  History tells us the fallout of only two and a half months of rioting during the summer of 1968 changed the direction of our country for the next 40 years.  We’ll see what happens.

Last month I noted the protestors here in our country are protected by the First Amendment to the U.S. Constitution, state constitutions, in addition to copious case law.  It’s nice to be a private citizen.  Still, there is work to do because invoking that “right” doesn’t fit everywhere and the police share the burden to assist the protestors in finding the right place to protest.  Since cops are a product of their community and have been screwed by their elected officials, Wall Street, and political corruption just like “The Person of the Year” by TIME Magazine I think the average officer has more in common with the protestors than most think.  Whether you wear a badge or not, we are all affected by high unemployment, gas, food and other social pressures.  Basically, the main differences between a protestor and the police are that the cops will “report for duty” although they’re getting disgruntled is growing (think of the national strategy to bust police unions).  Apart from shared similarities, there are stark differences between the two.  The protestors can pretty much say what they want.  The cops can’t.  As a matter of fact, depending on what the police say, when and how, they can be fired. 

The First Amendment does not protect everyone, especially public employees, and this isn’t new.  It’s not that the privilege does not exist, but its application can be tricky.  To clarify read the following:

  • 1st Amendment: “Congress shall make no law…prohibiting the exercise thereof; or abridging of speech…  (December 15, 1791).  Seemingly simple and to the point.
  • When answering the question of can the government use what was said by a public employee as grounds for termination, Justice Oliver Wendell Holmes stated, “there maybe a constitutional right to talk politics, but there is no constitutional right to be a policeman.”  (1892).  Still rather straightforward, albeit old and archaic.  Notice it took 101 years for a member of the Court to publically make that distinction.  Why?  City infrastructure was in its infancy; not many public employees existed.  In the larger metro areas positions were appointed and policing was ripe with political patronage.  As long as you paid your dues to the local councilman you kept your job.  Loyalty wasn’t to the citizenry it was to the political machine.
  • It wasn’t until the end of the 19th Century and early 20th Century that padding the pocket of the politician to get and keep your job as a “Copper” began to change.  Beginning at around 1935 “civil service commissions” became part of the American reformation process of policing.  You were appointed based on merit and skill, mostly, and the organized labor movement in the private sector was gaining momentum while getting a foothold in the public venue. 

Public Importance 

In it’s landmark decision of Pickering v. Board of Education, 391 U.S. 563 (1968) the Warren Court established a balancing test to ensure the First Amendment provisions of an individual while at the same time understanding that government needs to be able to do their job without to much interference.  If the public employee were acting as a private citizen when the statements were made, and the issue was of public concern, minus recklessness or falsehoods, then the speech is protected.   The Pickering decision stood as the bedrock of public employee speech protections, although challenged repeatedly, until 1983. 

Personal Grievance

In Connick v. Myers, 461 U.S. 138 (1983) the Court ruled in favor Connick, the current D.A. at the time (also the father of singer Harry Connick Jr. – side note) when he fired Myers his assistant for what he presumed to be her disobedience when she circulated a memo in the office challenging a transfer.  The Court, looking back at Pickering noted that in Connick there wasn’t a public concern, but rather an internal personal memo that did not raise a public issue.   Over the period of fourteen years, the “tone of the Court” seemed to move from being in favor of the public employee to that of being on the side of the public employer.  Justice White was noted as saying, “Government offices could not function if every employment decision became a constitutional matter.”   

He Said/She Said

What happens when the employee and the employer actually disagree as to what was said?  The Court decided on this with Waters v. Churchill, 511 U.S. 661 (1994).  Regarding their First Amendment statements, public employees cannot be fired unless the employer had a “reasonable basis for believing the speech was disruptive or of a private matter.”

Acting in the Private

Why is it that the attorneys are getting themselves in trouble?  In this case, Garcetti v. Ceballos, 547 U.S. 410 (2006) the plaintiff (in my personal view) rightfully questioned the validity of a warrant as an assistant D.A.  Internal memos flew around the office and the prosecutor was fired.  The Court held that “speech by a public official is only protected if it is engaged in as a private citizen, not if it is expressed as part of the officials public duties.”  

So, what can we deduce from what appears to be the view or direction of the U.S. Supreme Court pertaining to the First Amendment Right affecting public employees?

1)     The Court affirms that public employees never lost that right, but should be cautioned. 

2)     When balancing if the government can manage their organization as private businesses can versus the speech rights of their employees then the pendulum generally swings in favor of the government.

3)     When speaking in the capacity as a public official rather than a private citizen then there is no constitutional insulation and you can be subject to discipline.

In short, be careful what you say, to whom you say it and where; check with your union attorney before you say it and understand that non-verbal expressions are just as powerful as making a verbal statement.  At this current point in history, the law is not on our side.


About The Author:

Keith R. Lavery, M.A., CMAS, is a full-time criminal justice educator teaching at a public Career Center, University System of Ohio. He has facilitated and designed criminal justice, security, and law enforcement courses of instruction at the post-secondary level. Keith had a very diverse police career spanning nearly 20 years, working in urban and rural law enforcement settings with assignments ranging from patrol to specialized functions, to include HIDTA Drug Unit, CLANLAB Enforcement Team, SRT and Supervision. In 2008, Keith was awarded the Certified Master Anti-Terrorism designation from the Anti-Terrorism Accreditation Board. Academically, he has completed post-graduate course work dedicated toward a Doctorate in Education. Keith is currently the Law Enforcement Liaison for the Cleveland, Ohio, Chapter of ASIS International.