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Godhumor

(6,437 posts)
Tue Apr 29, 2014, 11:17 PM Apr 2014

In 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)

The so-called Pickering Test is applied in evaluating the interests of a public employer with the its employees’ right to Free Speech and requires the court’s consideration of the following:

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 Circuit’s 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 Circuit’s determination.

But how completely will the Eleventh Circuit’s 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 program’s 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 employee’s testimony “describes facts that the employee learned in the course of his employment, it’s 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 government’s 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.
102 replies = new reply since forum marked as read
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In the current SCOTUS Case, Obama is not out to get whistleblowers (Firedog is wrong) (Original Post) Godhumor Apr 2014 OP
Of course he's not.. but that doesn't stop the ignorance from Cha Apr 2014 #1
Thanks for doing the work on this BainsBane Apr 2014 #2
Glad to do it Godhumor Apr 2014 #3
As I noted in the other thread, Gosztola's agenda overwhelms the facts every time. Just see this stevenleser Apr 2014 #55
I read this in the other thread, too Godhumor Apr 2014 #57
This is an object lesson... Jeff In Milwaukee Apr 2014 #62
Tell that to Thomas Drake. ForgoTheConsequence Apr 2014 #4
Great analysis ... 1StrongBlackMan Apr 2014 #5
I have 3 posts in the other thread. Godhumor Apr 2014 #7
Great ... 1StrongBlackMan Apr 2014 #8
I will help keep this kicked.. thank you again, GH. Cha Apr 2014 #10
Thank you. brer cat Apr 2014 #6
But...but...RT says Obama is evil!! So FDL must be right!! jeff47 Apr 2014 #9
Thomas Drake, John Kiriakou, and Chelsea Manning think you're wrong, OnyxCollie Apr 2014 #11
completely irrelevant to this question Godhumor Apr 2014 #12
The title of your post is "Obama is not out to get whistleblowers" OnyxCollie Apr 2014 #13
I disagree but opinions vary Godhumor Apr 2014 #14
Drake's career was destroyed, and Kiriakou and Manning are in prison (35 years for Manning.) OnyxCollie Apr 2014 #16
The Obama DOJ did act shamefully with respect to Drake Vattel Apr 2014 #32
+1 dreamnightwind Apr 2014 #33
I thought the context made it clear Godhumor Apr 2014 #34
That helps, thanks dreamnightwind Apr 2014 #37
This message was self-deleted by its author rhett o rick Apr 2014 #15
Source for what? I posted the links to everything I felt relevant Godhumor Apr 2014 #17
This message was self-deleted by its author rhett o rick Apr 2014 #18
There was one blog Godhumor Apr 2014 #21
The position is stated in the Amicus Curiae: toddwv Apr 2014 #39
You have never heard of Scotusblog? BainsBane Apr 2014 #41
Wait a second...you are unaware of SCOTUS blog??? Really? nt msanthrope Apr 2014 #48
If its not in Common Dreams, FDL, or RT, most Obama critics dont know it exists, apparently. stevenleser Apr 2014 #54
My "top" tier of sites I won't give the time of day to are: Godhumor Apr 2014 #56
I thought everyone knew Scotusblog BainsBane Apr 2014 #65
When it comes to court cases, too, they can read the case itself treestar Apr 2014 #67
It shows peole aren't reading the actual cases . nt msanthrope Apr 2014 #72
Fer Cripes' sake... Jeff In Milwaukee Apr 2014 #64
Excellent synopsis. Laelth Apr 2014 #79
where did you go? Firedogfail needs your support! snooper2 Apr 2014 #68
"These people". You are really trying to bait me arent you? Sorry, find someone else. nm rhett o rick Apr 2014 #75
Interesting that you went back and covered your tracks Egnever Apr 2014 #91
Yep. He and his pals were all in the other thread with the usual name calling and Dem bashing Number23 Apr 2014 #92
Oh did they scrub that one as well? Egnever Apr 2014 #93
If FDL is a joke, Agnosticsherbet Apr 2014 #19
This OP does not adhere to purism standards of DU Gman Apr 2014 #20
The documented facts disagree with you. Obnoxious_One Apr 2014 #22
Read the animus which is the sworn statement on behalf of the us government Godhumor Apr 2014 #25
I find the sworn statement to be the least untruthful thing I've heard in awhile... eom. Obnoxious_One Apr 2014 #26
good? Not sure if that is supposed to be least truthful Godhumor Apr 2014 #28
The animus brief says right in it that the US believes the actions taken against Ed Lane were wrong. Cha Apr 2014 #31
Try reading it first...You might change your mind Jeff In Milwaukee Apr 2014 #69
Which documented facts? BainsBane Apr 2014 #42
You are absolutely correct that the FDL "reporting" was ridiculously bad. But Vattel Apr 2014 #23
And SCOTUS expressed skepticism at the US position Godhumor Apr 2014 #27
Me too. I hope they not only roll it back Vattel Apr 2014 #35
There is no question of a roll-back, I think Godhumor Apr 2014 #36
I agree that the Court will overturn the decision, and clarify the scope Vattel Apr 2014 #52
Doubt that will happen, personally Godhumor Apr 2014 #70
Ik, ik, but you can't blame me for wishin' Vattel Apr 2014 #71
of course not (on the wishing) Godhumor May 2014 #100
I concur. I like the ACLU's position. Laelth Apr 2014 #80
I saw that thread. Your writing is more factual than the article there. herding cats Apr 2014 #24
K&R nt pkdu Apr 2014 #29
Thanks mwyn8 Apr 2014 #30
K&R Jamaal510 Apr 2014 #38
K Cha Apr 2014 #40
I'm recing just because you stated your case so convincingly and so calmly Number23 Apr 2014 #43
Most people don't appear to bother reading the OP BainsBane Apr 2014 #44
Title readers. That was made obvious. nt Bobbie Jo Apr 2014 #50
Long ago, I determined that critics of the Democratic Party and its leaders from the left are not stevenleser Apr 2014 #60
I just read something that tells me you're right on that point BainsBane Apr 2014 #63
challenging a narrative is always tricky Godhumor Apr 2014 #76
+ struggle4progress Apr 2014 #45
Thanks! n/t pnwmom Apr 2014 #46
K Cha Apr 2014 #47
Nice post, Hitler. msanthrope Apr 2014 #49
Thanks! Glad it held up on your reading Godhumor Apr 2014 #53
Nicely done. nt Bobbie Jo Apr 2014 #51
Thanks for digging into this. I appreciate MineralMan Apr 2014 #58
Thanks for clarifying mcar Apr 2014 #59
You smart people.....you're so, you know....smart Jeff In Milwaukee Apr 2014 #61
Why deal in facts when a good FUD fight is so tasty. Whisp Apr 2014 #66
You will be right there to vote? HangOnKids Apr 2014 #82
No I can't vote, and I should just shush because I'm not American? Whisp Apr 2014 #83
Oh Geez you going off again? HangOnKids Apr 2014 #85
Red faced are we? Whisp Apr 2014 #86
Perhaps you citing my limited experience HangOnKids Apr 2014 #88
Meh Bobbie Jo Apr 2014 #89
K & R. n/t FSogol Apr 2014 #73
Thank you for taking the time to do this. We need facts and information on DU, not okaawhatever Apr 2014 #74
I've figured out the problem ... JoePhilly Apr 2014 #77
Especially when confronted with Truth n' Facts. That's when the real outrage starts up Whisp Apr 2014 #90
k&r for exposure. n/t Laelth Apr 2014 #78
Thanks for the research. KnR to read later in full. nt Hekate Apr 2014 #81
K Cha Apr 2014 #84
thanks for the help on the kick Godhumor Apr 2014 #94
Kick and rec! zappaman Apr 2014 #87
K & R for the truth! nt okaawhatever Apr 2014 #95
Excellent. sagat May 2014 #96
A very nice synopsis davidpdx May 2014 #97
K Cha May 2014 #98
K Cha May 2014 #99
K&R... giftedgirl77 May 2014 #101
Kick Bobbie Jo May 2014 #102

Cha

(319,115 posts)
1. Of course he's not.. but that doesn't stop the ignorance from
Tue Apr 29, 2014, 11:24 PM
Apr 2014

flowing.

thanks Godhumor

BainsBane

(57,760 posts)
2. Thanks for doing the work on this
Tue Apr 29, 2014, 11:24 PM
Apr 2014

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)
3. Glad to do it
Tue Apr 29, 2014, 11:36 PM
Apr 2014

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)
55. As I noted in the other thread, Gosztola's agenda overwhelms the facts every time. Just see this
Wed Apr 30, 2014, 08:27 AM
Apr 2014

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

This afternoon, a gentleman identifying himself as Kevin Gosztola, who writes for the left-wing website FireDogLake, left a message on my cell phone. He claimed to be working on a project for First Look Media -- the high-profile investigative journalism start-up that employs, among others, Glenn Greenwald. (First Look's top editor says the Gosztola has nothing to do with the outlet. More on that in a second.) I post Gosztola's missive verbatim:

“So you don’t deny that you encouraged Liz Wahl to resign. We are going to be publishing a story at First Look Media and I know that you’re going to be losing control of the narrative that you’ve managed to create around Liz Wahl’s resignation. We have multiple sources.

“It’s 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 we’re going to be putting out there. So your fun little charade, public stunt that you’ve 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 you’d 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 we’re going to respond to that and let people know where you’re 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.

Jeff In Milwaukee

(13,992 posts)
62. This is an object lesson...
Wed Apr 30, 2014, 09:57 AM
Apr 2014

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!!!

 

1StrongBlackMan

(31,849 posts)
5. Great analysis ...
Tue Apr 29, 2014, 11:54 PM
Apr 2014

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)
7. I have 3 posts in the other thread.
Tue Apr 29, 2014, 11:58 PM
Apr 2014

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.

 

OnyxCollie

(9,958 posts)
11. Thomas Drake, John Kiriakou, and Chelsea Manning think you're wrong,
Wed Apr 30, 2014, 12:27 AM
Apr 2014

your opinion of Fire Dog Lake notwithstanding.

Godhumor

(6,437 posts)
12. completely irrelevant to this question
Wed Apr 30, 2014, 12:33 AM
Apr 2014

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)
13. The title of your post is "Obama is not out to get whistleblowers"
Wed Apr 30, 2014, 12:37 AM
Apr 2014

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)
14. I disagree but opinions vary
Wed Apr 30, 2014, 12:41 AM
Apr 2014

And I am most certainly not wrong in the case discussed in my op and that other thread.

 

OnyxCollie

(9,958 posts)
16. Drake's career was destroyed, and Kiriakou and Manning are in prison (35 years for Manning.)
Wed Apr 30, 2014, 12:49 AM
Apr 2014

Those are facts, not opinions.

That you are unable to tell the difference does little to aid your credibility.

 

Vattel

(9,289 posts)
32. The Obama DOJ did act shamefully with respect to Drake
Wed Apr 30, 2014, 01:23 AM
Apr 2014

and other whistleblowers. But the FDL article is still shit.

Response to Godhumor (Original post)

Godhumor

(6,437 posts)
17. Source for what? I posted the links to everything I felt relevant
Wed Apr 30, 2014, 12:51 AM
Apr 2014

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)

Godhumor

(6,437 posts)
21. There was one blog
Wed Apr 30, 2014, 01:03 AM
Apr 2014

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)
39. The position is stated in the Amicus Curiae:
Wed Apr 30, 2014, 02:31 AM
Apr 2014
http://sblog.s3.amazonaws.com/wp-content/uploads/2014/03/13-483acUnitedStates.pdf

Page 24:

C. The Court Of Appeals Erred In Finding Petitioner’s 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 employee’s motive for testifying, the court of appeals erred in concluding that petitioner’s 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 government’s
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 petitioner’s speech unprotected

So yeah, that hack at FDL is wrong.

BainsBane

(57,760 posts)
41. You have never heard of Scotusblog?
Wed Apr 30, 2014, 03:12 AM
Apr 2014

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/

 

stevenleser

(32,886 posts)
54. If its not in Common Dreams, FDL, or RT, most Obama critics dont know it exists, apparently.
Wed Apr 30, 2014, 08:21 AM
Apr 2014

No wonder there are such warped critical views of the administration here.

Godhumor

(6,437 posts)
56. My "top" tier of sites I won't give the time of day to are:
Wed Apr 30, 2014, 09:12 AM
Apr 2014

RT
FDL
WSWS
Opednews

Second tier (case by case)
Alternet
Common Dreams

BainsBane

(57,760 posts)
65. I thought everyone knew Scotusblog
Wed Apr 30, 2014, 10:25 AM
Apr 2014

Where did they go to read the ACA ruling? I guess they didn't.

treestar

(82,383 posts)
67. When it comes to court cases, too, they can read the case itself
Wed Apr 30, 2014, 10:40 AM
Apr 2014

Uninterpreted by any biased source. People who claim to be this interested in an issue should at least make that effort.

Jeff In Milwaukee

(13,992 posts)
64. Fer Cripes' sake...
Wed Apr 30, 2014, 10:21 AM
Apr 2014

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)
79. Excellent synopsis.
Wed Apr 30, 2014, 04:59 PM
Apr 2014

Hope you refine that and spread it around. It could be very useful to do so.

-Laelth

 

rhett o rick

(55,981 posts)
75. "These people". You are really trying to bait me arent you? Sorry, find someone else. nm
Wed Apr 30, 2014, 03:21 PM
Apr 2014
 

Egnever

(21,506 posts)
91. Interesting that you went back and covered your tracks
Wed Apr 30, 2014, 09:15 PM
Apr 2014

Wouldn't want people pointing back to those posts in the future eh...

Number23

(24,544 posts)
92. Yep. He and his pals were all in the other thread with the usual name calling and Dem bashing
Wed Apr 30, 2014, 09:35 PM
Apr 2014

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)
93. Oh did they scrub that one as well?
Wed Apr 30, 2014, 09:42 PM
Apr 2014

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)
19. If FDL is a joke,
Wed Apr 30, 2014, 12:56 AM
Apr 2014

it is a particularly vicious and unfunny joke.

I found that I enjoyed your post, and have found illumination.

Gman

(24,780 posts)
20. This OP does not adhere to purism standards of DU
Wed Apr 30, 2014, 12:57 AM
Apr 2014

You will likely be called a shill for __________. (Fill in the blank).

BTW, excellent analysis and write up.

 

Obnoxious_One

(97 posts)
22. The documented facts disagree with you.
Wed Apr 30, 2014, 01:04 AM
Apr 2014

But making up your own reality can help people cope.

Godhumor

(6,437 posts)
25. Read the animus which is the sworn statement on behalf of the us government
Wed Apr 30, 2014, 01:10 AM
Apr 2014

Then get back to me.

Godhumor

(6,437 posts)
28. good? Not sure if that is supposed to be least truthful
Wed Apr 30, 2014, 01:16 AM
Apr 2014

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)
31. The animus brief says right in it that the US believes the actions taken against Ed Lane were wrong.
Wed Apr 30, 2014, 01:23 AM
Apr 2014

BainsBane

(57,760 posts)
42. Which documented facts?
Wed Apr 30, 2014, 03:15 AM
Apr 2014

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)
23. You are absolutely correct that the FDL "reporting" was ridiculously bad. But
Wed Apr 30, 2014, 01:06 AM
Apr 2014

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)
27. And SCOTUS expressed skepticism at the US position
Wed Apr 30, 2014, 01:12 AM
Apr 2014

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)
35. Me too. I hope they not only roll it back
Wed Apr 30, 2014, 01:27 AM
Apr 2014

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)
36. There is no question of a roll-back, I think
Wed Apr 30, 2014, 01:31 AM
Apr 2014

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)
52. I agree that the Court will overturn the decision, and clarify the scope
Wed Apr 30, 2014, 07:45 AM
Apr 2014

of the Garcetti ruling, but IMHO the Court should go further than that to provide witnesses adequate first amendment protection.

Godhumor

(6,437 posts)
70. Doubt that will happen, personally
Wed Apr 30, 2014, 12:51 PM
Apr 2014

I think, with this court's make-up we are likely to see a very specific definition of where the 11th got it wrong.

Godhumor

(6,437 posts)
100. of course not (on the wishing)
Thu May 1, 2014, 11:12 AM
May 2014

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)
80. I concur. I like the ACLU's position.
Wed Apr 30, 2014, 05:10 PM
Apr 2014

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)
24. I saw that thread. Your writing is more factual than the article there.
Wed Apr 30, 2014, 01:07 AM
Apr 2014

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!

mwyn8

(84 posts)
30. Thanks
Wed Apr 30, 2014, 01:17 AM
Apr 2014

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.

Number23

(24,544 posts)
43. I'm recing just because you stated your case so convincingly and so calmly
Wed Apr 30, 2014, 03:16 AM
Apr 2014

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)
44. Most people don't appear to bother reading the OP
Wed Apr 30, 2014, 03:19 AM
Apr 2014

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?

 

stevenleser

(32,886 posts)
60. Long ago, I determined that critics of the Democratic Party and its leaders from the left are not
Wed Apr 30, 2014, 09:54 AM
Apr 2014

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)
63. I just read something that tells me you're right on that point
Wed Apr 30, 2014, 10:17 AM
Apr 2014

I feel silly for not having figured it out earlier.

Godhumor

(6,437 posts)
76. challenging a narrative is always tricky
Wed Apr 30, 2014, 04:36 PM
Apr 2014

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.

Godhumor

(6,437 posts)
53. Thanks! Glad it held up on your reading
Wed Apr 30, 2014, 08:16 AM
Apr 2014

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.

MineralMan

(151,273 posts)
58. Thanks for digging into this. I appreciate
Wed Apr 30, 2014, 09:25 AM
Apr 2014

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.

 

Whisp

(24,096 posts)
66. Why deal in facts when a good FUD fight is so tasty.
Wed Apr 30, 2014, 10:33 AM
Apr 2014

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.

 

Whisp

(24,096 posts)
83. No I can't vote, and I should just shush because I'm not American?
Wed Apr 30, 2014, 07:33 PM
Apr 2014

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.

 

Whisp

(24,096 posts)
86. Red faced are we?
Wed Apr 30, 2014, 07:47 PM
Apr 2014


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)
88. Perhaps you citing my limited experience
Wed Apr 30, 2014, 08:03 PM
Apr 2014

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?

Bobbie Jo

(14,344 posts)
89. Meh
Wed Apr 30, 2014, 08:12 PM
Apr 2014

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.


okaawhatever

(9,565 posts)
74. Thank you for taking the time to do this. We need facts and information on DU, not
Wed Apr 30, 2014, 02:51 PM
Apr 2014

propaganda. We're Democrats. We rely on science, factual information and critical thinking to inform our opinions. FDL offers none of those things.

 

Whisp

(24,096 posts)
90. Especially when confronted with Truth n' Facts. That's when the real outrage starts up
Wed Apr 30, 2014, 09:04 PM
Apr 2014

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.

Godhumor

(6,437 posts)
94. thanks for the help on the kick
Wed Apr 30, 2014, 10:54 PM
Apr 2014

My turn as the other thread just popped back up to the top of the heap.

 

giftedgirl77

(4,713 posts)
101. K&R...
Thu May 1, 2014, 11:18 AM
May 2014

We need to keep some facts front & center as it is apparently faux outrage Thursday.

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