After another gutsy effort by the Mets (1-0 win in the 13th, giving Pedro his fourth no-decision of May, along with a loss), next up is Barry "Barroid" (h/t to local sports host Steve "Dr. Zoidberg" Somers) Bonds. A local story supplies an interesting look at another threat to the press of late, namely a federal subpoena to two reporters who broke a major steroid story (BALCO) in which Bonds play a major part.
This led Mark Corallo, Justice Dept. director of public affairs under Ashcroft, to submit an affidavit opposing the move, one joined by somewhat unlikely names -- one of Congress' most fervent anti-steroid crusaders (R-NY), a former baseball commissioner, and parents of two high school athletes who committed suicide after extensive suicide use:
"It did not meet our standard," Corallo told the Daily News yesterday. "We had a standard for taking this very grave step: imminent danger, in which innocent people could be harmed or in which the national security could be harmed.
"We understood that the law favored a prosecutor who wanted to subpoena a reporter, but we understood that the law is not always right in these matters, that there's a bigger picture, the principle of the freedom of the press that is essential to this nation's existence."
This is why even an appellate judge who supports a federal common law reporter privilege felt on balance the Plame story was a rightful exception -- national security was at stake, suggested by the amount of redacted material in the opinions in the case. The opening was congressional legislation that allowed the federal courts to develop such privileges if deemed proper by the courts -- a flexibility respecting self-management of their own courts that is shown in various areas. The opening, for instance, led to a therapist privilege about a decade ago. Likewise, sometimes encouraged by the courts (especially respecting regular trials as compared to grand jury press matters), federal prosecutors traditionally use a balancing test before requring reporters to submit to subpoenas of this sort.
It underlines that liberties and institutions that secure them (including the media) are protected in any number of ways. I am a bit of a court opinion buff, but in practice, federal court opinions (especially Supreme Court ones) might be the least important resource. Political processes -- both state and federal -- as well as the people themselves day to day tend to be much more important. And, a few telling exceptions aside, the Supreme Court has been encouraging this of late with less opinions, opinions that often are intentionally narrow. CJ Roberts, in fact, has recently been on record as being in support of more unanimous opinions. This will involve more of the same, since unanimity often requires saying less.
One can fit an important case handed down earlier this week, though it was 5-4, into this category. Tellingly, Justice Kennedy -- usually a strong First Amendment sort from the days of his sad concurrence in the flag burning case (had to do it, sorry guys) -- wrote the majority. The case, Scalia surely was happy, decided to clear up some confusion* respecting free speech rights for public employees by drawing a clear line -- speech in pursuit of one's governmental job is not that of a "citizen" that is protected by the First Amendment.
This is not the same as speech at the job -- for instance, voicing opinions at your desk on issues of the day, or even calling to attention problems (like discrimination) when it is not your job to do so. Still, internal activity connected to your job is different:
We hold that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.
It is unclear why. As Justice Stevens in a separate dissent (Souter wrote the primary one ... Alito joined the majority after the case was re-argued once O'Connor left ... so he might have been the difference) noted, the proper answer to a question of when employee speech should be protected in such cases is "sometimes" not "never." Don't worry says Justice Kennedy, you can still speak publicly (having protections like other citizens who do so) and government agencies would logically set up internal procedures to deal with such information. Likewise, cutting off a potential First Amendment challenge does not bar claims under whistleblower laws.
I am not sure how the First Amendment is to treat citizens this differently when they are at their government jobs. As noted above, they clearly have some free speech rights there, more so than private employees who are not governmental actors.** Thus, it turns on the harm to free speech overall, and the majority basically argues that it is small with countervailing interests of workplace regulation winning out here. But, even putting aside the free speech concerns (which are convincing alone), the pragmatic value of the decision is unclear. It is unclear if the ruling will actually promote internal safeguards. Evidence that whistleblower laws are of questionable value has been evident of late.
And, encouraging employees to seek outside avenues to speak their mind [some argue this is not a "whistleblower" case at all, but so be it: internal debate is important too] -- including by leaks and an environment that frowns on dissent (e.g., the current administration) -- is not an ideal situation. This ruling is questionable, even if its limits are somewhat unclear, and the timing of it is especially unfortunate.
Still, it shows how the people we choose to rule over us (and all the positions they have the power to fill) are ever more important in safeguarding the public good. The ruling is partly troubling because it confuses this reality, underlining how a government employee "did not act as a citizen" here, but only as a governmental employee. Is this not at the heart of the problem sometimes? Certain people are not "citizens" but merely employees to some "employer," which happens to be the U.S. government.
---
* The confusion led even a critic of the case to by sympathetic to the attempt for clarity, though in the end, he doubts it really will be successful. I too have my doubts -- the Court invited internal protections, which might not work. But, if it does, would it not sometimes lead to court cases (based on statutory rights and so forth) for which line drawing will have to be made? Also, retaliation might arise from non-internal speech, including leaks and editorials ... also opening up court action. This too will require some line drawing.
** per 1994 an opinion by Justice Stevens:
This is a free country. Every American has the right to express an opinion on issues of public significance. In the private sector, of course, the exercise of that right may entail unpleasant consequences. Absent some contractual or statutory provision limiting its prerogatives, a private sector employer may discipline or fire employees for speaking their minds. The First Amendment, however, demands that the Government respect its employees' freedom to express their opinions on issues of public importance. ...
Government agencies are often the site of sharp differences over a wide range of important public issues. In offices where the First Amendment commands respect for candid deliberation and individual opinion, such disagreements are both inevitable and desirable. When those who work together disagree, reports of speech are often skewed, and supervisors are apt to misconstrue even accurate reports. ...
[D]eliberation within the government, like deliberation about it, is an essential part of our "profound national commitment" to the freedom of speech.
But, if a court opinion is only so powerful in actuality, a dissenting opinion (however correct), is even less so.