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Related: Editorials & Other Articles, Issue Forums, Alliance Forums, Region ForumsIn the current SCOTUS Case, Obama is not out to get whistleblowers (Firedog is wrong)
Last edited Wed Apr 30, 2014, 09:27 AM - Edit history (2)
So this is an OP in response to the thread at http://www.democraticunderground.com/10024885041
It has built up 70+ replies, 30+ recommendations and contains a fair amount of outrage at the Obama administration's apparent efforts to disregard protections for whistleblowers. The main thrust of this comes from a FDL link you can see in the OP of the above thread.
A few people, including myself, posted in derision of basing outrage on a FDL link, because, frankly, a fair number of people find FDL to be without significant merit. Those who posted as such were accused of spreading propaganda or failing to be properly outraged at this gross misstep of the government due to attacking the source. The issue, of course, is very simple--in this case, once again, FDL is wrong.
What follows will be a fairly long OP by my standards of what the SCOTUS case actually is about and what the administrations role actually was in from of the justices (Quick hint: they're not arguing a case viewpoint).
Case: Lane v. Franks
Petitioner: Edward Lane
Defendants: Steve Franks and Susan Burrow of Central Alabama Community College
Extremely brief summary: Edward Lane used to work for CACC. While there, he discovered on his department's payroll a legislator was commanding a significant salary, even though she never did any work or even present herself to the school. When Lane asked about this, he was told to leave it alone as the legislator had influence. He refused and fired her.
Later, he was subpoenaed in two separate cases involving corruption. Upon testifying, Edward Lane was fired.
Edward Lane has argued that he was fired in retaliation and that his rights were violated.
CACC argues that, as a public employee, Lane has no expectation of First Amendment rights in conjunction with subpoenaed testimony (more on this later)
Cases involved in precedent:
Pickering v. Board of Education
Established the Pickering Balance Test that has been in use ever since for establishing public employees and employer's rights with regards to forced testimony. A summary can be found at http://publicpersonnellaw.blogspot.com/2010/01/essentials-of-pickering-balancing-test.html (Quoted below)
1. Did the individual demonstrate that his or her speech address a matter or matters of public interest and concern?
2. Did the individual demonstrate that his or her speech was a significant or motivating factor in the employer's decision?
3. Did the court balance the interests of the individual commenting on matters of public concern as a citizen and the public employer's interest in "promoting the efficiency of public service?"
Garcetti v. Ceballos
Occurred after Alito joined the court. This was a 5-4 ruling (Surprise, right?) that public employees when speaking in their role as a public employee are not speaking as private citizens. As such, they do not have full first amendment rights when testifying in their role as a public employee.
Have all that? A simple roll up is that Pickering defines whether a public employee testifying is doing so as an employee or as a private citizen. Garcetti defines the difference in protected speech rights in those two cases.
So why is there a limit to first amendment rights for public employees testifying as public employees? Because, if a public employee's job has a reasonable expectation of giving testimony (i.e. police, agents, etc), then their supervisors need to be able to use that fact in their evaluations and retention decisions (More on this later, as well).
The 11th Circuit Overstep:
The 11th Circuit took an overly broad definition of Garcetti by stating that Edward Lane had no First Amendment rights in his testimony. There is a full expectation that part, if not all, of the 11th Circuit's decision will be overturned
The Administration's role in this case:
The Administration filed, and presented, an animus curiae on this case. An animus curiae is when a non-involved party presents or gives information they feel is relevant to the case or when they have a concern germane to its outcome.
In this case, the administration is asking for a rollback of the 11th Circuit's decision.
The animus brief can be found at http://sblog.s3.amazonaws.com/wp-content/uploads/2014/03/13-483acUnitedStates.pdf
Since I cannot copy and paste text from the pdf, I will hit on just a few highlights:
- Argues that Lane's testimony was in the public interest and was protected (i.e. the administration is saying Lane was wrongly fired; FDL is just plain wrong)
- That rolling back the 11th Circuit decision to its broadest definition; where all testimony by public employees is protected speech would be detrimental to supervising and managing employees that testify as part of their job responsibilities--including thousands of agents and police officers (as I mentioned earlier). As the federal government is the largest public employer, this would significantly hinder management efforts. It is worth noting that even Edward Lane's lawyer does not support this broad of a definition--he wants a roll-back so that all public employee testimony is measured by the Balance test.
Government would like a narrow reversal of the 11th Circuit's decision.
The US solicitor who gave a statement in support of the animus was questioned by the justices. The justices liked to use hypotheticals on everyone presenting, including Edward Lane's attorney (Asked whether a public employee who showed up to testify in a clown suit could be fired for doing so). To the US solicitor, the hypothetical involved firing someone for testimony that a more senior person did not like. The solicitor answer honestly that, yes, if giving testimony is part of the job and part of the evaluation process then he or she could be fired for doing so (This is what FDL keyed in on), but that whistleblower protections would give them avenues of recourse. In other words, if a person is fired for the content of the testimony and not how it related to his or her job performance they can pursue an injury claim. So no, in no way, is the Obama administration supporting the idea that whistleblowers are without protection.
So a more brief summary from the wonderful SCOTUSblog at http://www.scotusblog.com/2014/04/argument-analysis-how-wrong-was-the-eleventh-circuit-about-the-first-amendment-protections-for-a-public-employees-subpoenaed-testimony/
The Eleventh Circuits brief per curiam opinion in Lane v. Franks held that Edward Lane, an employee at a community college program, had no First Amendment protection for his subpoenaed testimony. In oral argument, there was little support for that conclusion. Only one of the four advocates argued for unqualified affirmance, and none of the Justices seemed inclined to fully embrace the Eleventh Circuits determination.
But how completely will the Eleventh Circuits decision be reversed? The contours of any correction pose two major issues.
First, there is the problem of the breadth of a resulting First Amendment rule. It would be difficult to find more sympathetic facts for the protection of a public employee. After Edward Lane became the director of a program for at-risk youth at Central Alabama Community College (CACC), he looked at the programs finances and soon discovered a state representative was on the payroll. He also discovered she had never done any work for the program. His superiors, including an attorney for the college, advised him to let well enough alone. But he terminated the state representative when she refused to show for work; she vowed to retaliate. She was eventually indicted and Lane testified before a federal grand jury and pursuant to a subpoena at her two federal criminal trials for mail fraud and fraud involving a program receiving federal funds. He was terminated between the two trials.
While Lane seems a stellar employee, as the Alabama Attorney General Luther Strange all but admitted, there were concerns about other employees who might be protected by a bright-line rule protecting testimony. What if the employee is a lab technician who testifies as part of his job duties? Can the employer discipline him if the employee cannot perform this part of his job? Or if, as Justice Sotomayor asked, the employee comes to court dressed in a clown suit? Should the subpoena be the deciding factor? Arguing for Edward Lane, Tejinder Singh suggested a narrow holding that essentially reasserted Garcetti v. Ceballos and Pickering v. Board of Education, subject only to the clarification that even when a public employees testimony describes facts that the employee learned in the course of his employment, its still protected. Singh did articulate the strong version of the First Amendment rule that would protect testimony based on a separate and superior obligation to testify truthfully to the court, but he made clear he did not advocate its adoption. Deputy Solicitor General Ian Gershengorn, appearing on behalf of the federal government as an amicus, argued that such a broad rule would intrude on the governments ability to supervise its own employees, especially those who testified as part of their employment.
Summary:
- US is not a petitioner or defendant but an interested party
- US wants to protect both the free speech rights of public employees acting as private citizens and its ability to manage those employees where giving testimony is part of the job description
- US believes Edward Lane was wronged
- FDL missed the forest for the trees yet again, and has earned its reputation as a joke
I would ask that you give me a hand in keeping this bumped for as long as the other thread is active. Would love it if people that get all angrified might have another source to look at before jumping off the train.
Cha
(319,115 posts)flowing.
thanks Godhumor
BainsBane
(57,760 posts)I linked to Scotusblog because I could tell the discussion in that thread made no effort to understand the legal issues at stake in the case but didn't have the energy to wade through the arguments as you have done. I appreciate your doing so.
People would do well to keep in mind that SCOTUS cases have implications far beyond the parties involved in the specific case before the court. The legal implications of unrestricted 1st Amendment rights for public employees like police testifying in court could be devastating to the public interest, as people should be able to imagine. If a cop reveals himself to be a terrible bigot in his enforcement of the law, for example, do you really want an agency not to be able to terminate him based on that testimony? I would think not.
Godhumor
(6,437 posts)I completely skipped over the question of the defendants' culpability in this case (also being argued), but I think it covers the main outrage surrounding whistleblower protections.
And yes your second paragraph is exactly right. If testimony is part of your job then it also part of your evaluation. No two ways around it.
stevenleser
(32,886 posts)and how he behaved in this situation. He so wanted to force a particular narrative, he completely misrepresented himself.
http://www.thedailybeast.com/articles/2014/03/12/defending-putin-s-propagandists.html
So you dont deny that you encouraged Liz Wahl to resign. We are going to be publishing a story at First Look Media and I know that youre going to be losing control of the narrative that youve managed to create around Liz Wahls resignation. We have multiple sources.
Its fairly obvious that you have orchestrated this as part of some Foreign Policy Initiative [the think tank where I work] agenda. And this is what were going to be putting out there. So your fun little charade, public stunt that youve been putting on which the media has completely eaten up here in the United States, is hopefully over
If you have any comment and if youd like to respond to me and prove that this is not how it is, you let me know. But otherwise we are ready to go. And, you know, you like to fuck with the Russians and were going to respond to that and let people know where youre coming from as you have worked with Liz Wahl to expose what you call a propaganda network.
--------------------------------------------------
You need to see the full portion of that article that concerns Gosztola's behavior and listen to the call, there is an audio link there.
These are the kinds of people FDL has writing for them. Folks who are determined to create narratives that are not there and will ignore facts and push their agenda in spite of the evidence to help themselves do it.
Godhumor
(6,437 posts)It does paint quite the picture.
Jeff In Milwaukee
(13,992 posts)in the need for consumers of information (that would be all of us) to be finicky consumers of information. The Firedoglake story left my head spinning, and after a couple dozen clicks, I was able to get to the truth.
Of course, if you'd been faster in posting this summary, it would have saved me a hell of a lot of time.
TYPE FASTER, DAMN YOU!!!
ForgoTheConsequence
(5,186 posts)And John Kiriakou.
And Jesselyn Radack
etc.
1StrongBlackMan
(31,849 posts)to be largely ignored because ... you know ... OUTRAGE!
I'll be surprised if I'll be able to even find this thread tomorrow ... without hitting "My Posts"; be I'm pretty certain the other thread will live forever.
Maybe, you should cross-post this to the other thread. There are a couple folks here that aren't really "Hair on fire" prone.
Godhumor
(6,437 posts)I will keep this one bumped to the front page as long as the other one is active.
If I wake up tomorrow and mine is buried and the other is not, I will go add a cross-post reply.
1StrongBlackMan
(31,849 posts)you authoritarian lackey propagandist!
Cha
(319,115 posts)brer cat
(27,597 posts)K&R
jeff47
(26,549 posts)(aka sarcastic bump)
OnyxCollie
(9,958 posts)your opinion of Fire Dog Lake notwithstanding.
Godhumor
(6,437 posts)As this case is not involving classified information and the US is not an active participant in the case.
And FDL is a joke, yes.
OnyxCollie
(9,958 posts)Drake, Kiriakou, and Manning are whistleblowers who have been severely punished by the Obama administration.
It's relevant and you're wrong.
Godhumor
(6,437 posts)And I am most certainly not wrong in the case discussed in my op and that other thread.
OnyxCollie
(9,958 posts)Those are facts, not opinions.
That you are unable to tell the difference does little to aid your credibility.
Vattel
(9,289 posts)and other whistleblowers. But the FDL article is still shit.
dreamnightwind
(4,775 posts)It's like the poster doesn't even know the title of his/her own OP.
Godhumor
(6,437 posts)But I will add a qualifier to the title.
dreamnightwind
(4,775 posts)Response to Godhumor (Original post)
rhett o rick This message was self-deleted by its author.
Godhumor
(6,437 posts)Scotusblog
The animus brief
Link to definition of the balance test
Not sure what more I can source for you.
Response to Godhumor (Reply #17)
rhett o rick This message was self-deleted by its author.
Godhumor
(6,437 posts)The Animus brief that outlines the US position including its arguments is linked right in my op for you to go read. Considering it is the actual filing, I would say it is deeply relevant. I am getting the impression you didn't make it past the thread title though.
By the way, SCOTUSblog is not a typical blog. They are in the court on days of argument and decisions, they compile all legal filings as well transcripts and they're actually federal lawyers. In fact, two of them are on Edward Lane's legal team.
My other links are not blogs either.
toddwv
(2,831 posts)Page 24:
C. The Court Of Appeals Erred In Finding Petitioners Speech Unprotected
Because testimony is not categorically excluded from First Amendment protection when it concerns information learned from public employment, and because testimony such as that at issue here is speech as a citizen regardless of the employees motive for testifying, the court of appeals erred in concluding that petitioners testimony was categorically unprotected employee speech.
------------------------------
The petitioner in this case is Lane.
The Amicus Curiae filed by the Obama Admin states its position as:
A.
Speech by a government employee is protected if it is made as a citizen on a matter of public concern and the governments
interest as an employer does not outweigh the interests advanced by the speech.
B.
Speech that discloses information learned from public employment may be speech as a citizen under the First Amendment
C.
The court of appeals erred in finding petitioners speech unprotected
So yeah, that hack at FDL is wrong.
BainsBane
(57,760 posts)Last edited Wed Apr 30, 2014, 05:42 AM - Edit history (1)
Seriously? It appears you are so invested in the other view of the case that you can't be bothered to read the OP. Soctusblog is run by constitutional lawyers from George Washington University Law School. The site provides links to the full briefs in this and every other case before the court as well as audio of oral arguments. It is a highly respected site.
As the OP shows, this case is not being contested under any whistleblower statute but relates to balancing First Amendment rights of public employees through a legal principal called the Pickering Test. Scotusblog provides links through which you can access the legal briefs in full, including the amicus brief filed by the United States on March 10. http://www.scotusblog.com/case-files/cases/lane-v-franks/
msanthrope
(37,549 posts)stevenleser
(32,886 posts)No wonder there are such warped critical views of the administration here.
Godhumor
(6,437 posts)RT
FDL
WSWS
Opednews
Second tier (case by case)
Alternet
Common Dreams
BainsBane
(57,760 posts)Where did they go to read the ACA ruling? I guess they didn't.
treestar
(82,383 posts)Uninterpreted by any biased source. People who claim to be this interested in an issue should at least make that effort.
msanthrope
(37,549 posts)Jeff In Milwaukee
(13,992 posts)Read the goddam Amicus Curiae.
This is fundamentally a human resources issue. The ACLU is arguing that every employee should be treated as a private citizen when it comes to testimony in court -- meaning that as a Police Chief, I can't fire an officer who is terrible at testifying in court (which is part of his job description). The Obama Administration -- and again I would urge you to read the Amicus -- is arguing that the definition should be that broad. Here's the money quote from you:
Gershengorn: When government employees testify, they sometimes speak as citizens and they sometimes speak as employees. We agree that Petitioner here spoke as a citizen when he testified, but we disagree with the suggestion of some of the amici that government employees always speak as citizens rather than as (employees).
Did you get that? The government agrees that Lane was protected - I suspect that this Amicus Curiae only arose when the DOJ learned that the ACLU was going to come in arguing that the Court should through out the baby with the bathwater.
Laelth
(32,017 posts)Hope you refine that and spread it around. It could be very useful to do so.
-Laelth
snooper2
(30,151 posts)Prove these people wrong!
rhett o rick
(55,981 posts)Egnever
(21,506 posts)Wouldn't want people pointing back to those posts in the future eh...
Number23
(24,544 posts)spouting endless cliches and calling everyone that dared to call that OP out for the poorly referenced tripe that it was "government mouthpieces" and the usual "authoritarian."
So it's so interesting to see all of the deleted posts in both threads. And a hidden one too.
Egnever
(21,506 posts)I will have to take a look now.
Guess sometimes attacking the messenger happens for a reason. You think they clued in on this? My bet is there will be more spewage tomorrow with more cries of authoritarian!
Agnosticsherbet
(11,619 posts)it is a particularly vicious and unfunny joke.
I found that I enjoyed your post, and have found illumination.
Gman
(24,780 posts)You will likely be called a shill for __________. (Fill in the blank).
BTW, excellent analysis and write up.
Obnoxious_One
(97 posts)But making up your own reality can help people cope.
Godhumor
(6,437 posts)Then get back to me.
Obnoxious_One
(97 posts)Godhumor
(6,437 posts)FDL tried to argue that the government is attempting to do something it is not. The animus brief says right in it that the US believes the actions taken against Ed Lane were wrong. Not sure how much clearer it can be.
Cha
(319,115 posts)Jeff In Milwaukee
(13,992 posts)It does not say what you think it says.
BainsBane
(57,760 posts)The OP links to Scotusblog which in turn links to the full text legal documents in the case. Where is s/he in error?
http://www.scotusblog.com/case-files/cases/lane-v-franks/
Vattel
(9,289 posts)I still think the DOJ position is too conservative. I agree with the ACLU position that when one gives testimony in court, then regardless of whether that testimony was compelled or voluntary, and regardless of whether it is given pursuant to one's job responsibilities as a public employee, one is speaking as a citizen and so that speech enjoys prima facie first amendment protection. The government would need a very compelling interest to justify disciplining an employee for simply telling the truth in such a context, although if the employee reveals things that he was not asked to reveal, for example, discipline might be appropriate.
Godhumor
(6,437 posts)They also voiced skepticism of a very broad definition, so I am quite curious to see the extent they roll-back the lower decision.
Vattel
(9,289 posts)but also move the ball towards demanding more protection for witnesses than the Garcetti decision and the Pickering balancing bullshit provide.
Godhumor
(6,437 posts)The question will be on the broad to narrow fixture. There is also the possibility of returning it to the lower court, but I think the judges will use this to clarify precedent.
Vattel
(9,289 posts)of the Garcetti ruling, but IMHO the Court should go further than that to provide witnesses adequate first amendment protection.
Godhumor
(6,437 posts)I think, with this court's make-up we are likely to see a very specific definition of where the 11th got it wrong.
Vattel
(9,289 posts)Godhumor
(6,437 posts)But, considering that even the petitioner is only asking for a roll-back to Pickering, I think the public interest vs as an employee will be staying. But who knows, maybe the court will expand on the definition of public interest.
Laelth
(32,017 posts)The government can find some way to fire a professional expert witness who does little more than speak in court for the government without curtailing the First Amendment. The First Amendment does not need to be limited just to preserve the government's right to fire sub-par personnel. That, as I understand it, is what the government is arguing, and, imho, it's an embarrassingly lame position to take.
That said, I am glad the government has spoken out in favor of reversing the Eleventh Circuit who ruled, in effect, that the Republican Party can pay a back-door bonus salary to its legislators through the school system. That decision needs reversing badly.
-Laelth
herding cats
(20,050 posts)I don't know FDL and can't speak to if that was common for them, so I won't. I will say your points are correct to my understanding of the issue.
Well done!
I read a bit about it earlier. Did not have time to cross reference & you did
Not good at legal jargon anyway.
I like Vattel's statement.
Jamaal510
(10,893 posts)Number23
(24,544 posts)The beyond idiotic name calling of DUers that dare to disagree in that other thread is so tedious, tiresome and unnecessary.
And I also completely share your opinion of FDL. The go to site for "progressives" far more interested in drama than they could ever be with facts.
BainsBane
(57,760 posts)and instead react entirely to the title, as the responses in this thread indicate. Moreover, people seem to have no interest in the actual legal case that only a few hours ago they were certain was a smoking gun demonstrating the malevolent nature of the Obama administration. You went and posted facts that interfered with righteous indignation toward a President some seem convinced is the worst in American history.
In fact, the complete lack of interest in the actual facts of the case and linked legal briefs is illuminating in a sense. I read the responses as demonstrating that the opposition to the administration is more visceral than principled. If it were a reluctant opposition based on principle, wouldn't people be interested in reading the actual case rather than dismissing it without even skimming the OP?
Bobbie Jo
(14,344 posts)stevenleser
(32,886 posts)motivated by or interested in facts or actually making a difference as much as a desire to seem self-righteous and holier than thou in a totally attention seeking way.
Obviously, there are exceptions, but by and large I think this is the case and the vast majority of posts critical of Democrats from a left perspective can simply be boiled down to this:
"Look at me, how wonderfully correct and progressive I am on the issue, as opposed to this Democratic Party official who is a compromising sellout!!!!111!11!"
BainsBane
(57,760 posts)I feel silly for not having figured it out earlier.
Godhumor
(6,437 posts)First instinct is to attack; the second is to ignore.
What has been nice is that a fair number of people have read the op and the links and are active within the thread. I hope that continues, as the misinformed thread is closing in on 150 replies.
On the plus side, 50+ Recs is a very nice surprise.
struggle4progress
(126,168 posts)pnwmom
(110,261 posts)msanthrope
(37,549 posts)Seriously...an excellent roundup of the facts, without the ODS.
Godhumor
(6,437 posts)Since realizing your profession in a thread I started long ago on a hit and run case in Buffalo, I look for your opinion in these kind of threads. Thanks for chiming in.
Bobbie Jo
(14,344 posts)MineralMan
(151,273 posts)reading what you posted. I did not have time to research this yesterday after reading the other thread, but something seemed off in the FDL article.
mcar
(46,061 posts)N/t
Jeff In Milwaukee
(13,992 posts)Thanks for posting this.
Whisp
(24,096 posts)Some like to spread that Fear, Uncertainty and Doubt like peanut butter on fresh bread.
Yum, nom nom.
Thank you for posting the real story. FDL is gearing up for the midterms, yet again, with their FUD stuff.
HangOnKids
(4,291 posts)Oops sorry, you can't do that can you?
Whisp
(24,096 posts)This again? If you only knew how silly that sounds. I can't criticize Hillary because I'm Canadian, one of those furiner folks - I can't 'gloat' (as if I ever fucking did that) about health care in Canada, and now I am not allowed to crit Firebag Lake because in their excitement to bash Obama they sort of skipped the facts.
Tell you what tho, I am quite certain that if I hated the President, and complained about the ACA continually and rode on the Hillary for President bandwagon I would not be getting these 'accusations' of not being 'one of you'. How ridiculous. How transparent.
If Americans land up with another likes of Bush the Idiot (with friends like some voters who claim to be democrats it can always be possible), it might have just as horrific effect around the world than your apparently limited experience can not seem to comprehend. Our conservative Harper may well agree with a nasty war this time, unlike the Liberal Jean Chrétien who pretty well told Bush to push off when asked to join in the adventure -- and if you think that's none of my business I am actually glad you took the time to comment and have all see how ridiculous your 'argument' is.
Yeh, why should I have any opinions here. What utter foolishness. Same for ACA, it's not like I Know anyone in the U.S. and worry about them so I should just shut up and not mock y'all just for the fact that I am Canadian.
What silliness! I believe EarlG is from Britain, you better go tell him off too! What the fuck is he doing talking American politics?
o.m.g.
HangOnKids
(4,291 posts)Blah blah blah....anything else Whisp?
Whisp
(24,096 posts)And why would you PM me about how many countries you lived in, what has that got to do with Anything?
O well, nevermind.
HangOnKids
(4,291 posts)If Americans land up with another likes of Bush the Idiot (with friends like some voters who claim to be democrats it can always be possible), it might have just as horrific effect around the world than your apparently limited experience can not seem to comprehend.
I do not have "limited experience." Have you ever been out of Canada?
Don't bite, Whisp. This one is just going up one thread and down the next with the sniping.
Like a good buddy of mine used to say....don't make eye contact.
FSogol
(47,623 posts)okaawhatever
(9,565 posts)propaganda. We're Democrats. We rely on science, factual information and critical thinking to inform our opinions. FDL offers none of those things.
JoePhilly
(27,787 posts)DU's Outrage Meter always looks like this:

Whisp
(24,096 posts)when one of the 'piece of shit used car salesman Obama' stories turns out to be a piece of Firebag Lake crap writing.
Nothing can top the Cat Food Commission saga tho.
Laelth
(32,017 posts)-Laelth
Hekate
(100,133 posts)Godhumor
(6,437 posts)My turn as the other thread just popped back up to the top of the heap.
zappaman
(20,627 posts)You authoritarian you!
okaawhatever
(9,565 posts)sagat
(241 posts)Kick for reason.
davidpdx
(22,000 posts)Kick and Rec
giftedgirl77
(4,713 posts)We need to keep some facts front & center as it is apparently faux outrage Thursday.