After the posting this morning over the controversy involving former Indiana Deputy Attorney General Jeff Cox, I had an opportunity to discuss the allegations with him in detail. Cox makes an interesting free speech case over his treatment and later termination for comments that he made on Twitter and on his blog. I wanted to share some of those details and the concern over a termination based on a lawyer’s statements in his private life.
Here are the salient facts that Jeff Cox revealed in our conversation:
First, Cox confirmed that he never connected his statements to his position at the Indiana Attorney General’s office. After he created his blog, he corresponded anonymously. Later, he added his name but never identified himself with his office. Indeed, he told me that Adam Weinstein from Mother Jones first contacted him at his work e-mail. He responded to that e-mail from his personal e-mail. When Weinstein again replied using his work address, Cox said that he answered his questions using his personal account.
Second, Cox says that his superiors knew that he had the blog and did not discourage him. Indeed, he said that he started the blog Pro Cynic in 2004 as an experiment for the Indiana Attorney General’s Office, which was still unsure of how to use blogs. He began to use his real name only after he was assured that he could not be punished for blogging so long as he did not associate his office or his position with the blogs. He recounted how, sometime in 2006, he had discussions with senior staff and was told that there was no need to keep his blog posts pseudonymous. He said that he viewed the blog as personal, not representative of the office, because he never identified it with the office, blogged on his own equipment and time and did not talk any issues that related to the office or state matters. The office simply asked him to avoid discussing local or state issues. Ironically, that meant that Cox focused on international issues like Afghanistan and out of state issues like that of the strike in Wisconsin.
Third, Cox insists that many of these comments are taken out of context. He said that he made a great number of comments designing to start debates and often meant in jest. He is not anti-union and actually comes from a union family (his father is a union member and his family is composed of steel workers and coal miners). He said that he was bothered by reports that the Sergeant of Arms told legislators that he could not guarantee their safety but that the reference to live ammunition was meant as hyperbole. He insisted that he liked to spar on the blog and often used incendiary language to spur debates. That is why, he insists, his site was called “Pro Cynic.” “Pro Cynic” was short for “Professional Cynic” and was “always intended to be a mixture of seriousness and humor, ‘cynic’ being a synonym for satire, sarcasm or irony.” He stated that the office was aware of his often off-the-wall commentary on the blog, which would sometimes be the subject of office joking. He says that he would make fun of himself on the site, such as proclaiming that the site was “one small step for man …”
Fourth, Cox did not work in any area remotely associated with the Wisconsin controversy. He handled eminent domain cases and was a member of the transportation practice group.
Fifth, he was terminated by the Attorney General’s office after a brief discussion with his superiors. He was told that he could be fired for simply bringing discredit upon the office — even due to statements made as an individual.
Sixth, Cox had a good record with the office. In fact, in 2010, he earned the “You Rock” award – a painted rock – for going above the call of duty in serving the people of Indiana. He had worked with the office since 2001 when he began as a law clerk and continued after his graduation.
In my view, these facts (if proven) would make for a strong free speech claim. We have been discussing the trend toward increasing discipline for public officials based on actions or statements occurring in their private lives. We have seen this regulation of private speech in cases that involve disciplinary actions against students (here, teachers (here and here and here and here and here and here), police officers (here and here and here) and other public employees (here).
The connection made in this context to the office was not apparently made by Cox but by Mother Jones magazine. Cox has since closed his blog and regrets causing the controversy. The question is why he was not simply given a warning about such comments and how they reflect upon the office. Now that his name has been associated with the office, he would likely have curtailed or stopped such comments.
There is obviously a great deal of anger over these comments, but the real question is whether a public employee like Cox has any protection for comments made as a private citizen.
In 2006, the Court decided the case of Garcetti v. Ceballos, in a close 5-4 decision against a public employee. In this case, Justice Kennedy ruled that the First Amendment does not protect “every statement a public employee makes in the course of doing his or her job.” However, this was a case where the assistant district attorney was making the comments are part of his duties and the Court ruled 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.” In this case, Cox made no association with his office. Notably, even in a matter involving statements made in the course of one’s duties, the vote was a close call with Justice Alito deciding the case as the fifth vote.
In Pickering v Board of Education (1968), the Court ordered the reinstatement of a teacher who wrote a letter to a newspaper critical of the local school board. The Court found that a public employee’s statements on a matter of public concern could not be the basis for termination without more of a showing, such as knowing or reckless falsehoods or the statements were of the sort to cause a substantial interference with the ability of the employee to continue to do his job.
I have great problems with the scope of the Garcetti opinion. Yet, Kennedy did note that:
At the same time, the Court has recognized that a citizen who works for the government is nonetheless a citizen. The First Amendment limits the ability of a public employer to leverage the employment relationship to restrict, incidentally or intentionally, the liberties employees enjoy in their capacities as private citizens. See Perry v. Sindermann, 408 U. S. 593, 597 (1972) . So long as employees are speaking as citizens about matters of public concern, they must face only those speech restrictions that are necessary for their employers to operate efficiently and effectively. See, e.g., Connick, supra, at 147 (“Our responsibility is to ensure that citizens are not deprived of fundamental rights by virtue of working for the government”).
This case would appear to involve matters of public concern and comments made as an individual citizen.
What do you think?
Jonathan Turley
Additional source: ABA Journal
RE: Buddha Is Laughing, March 7, 2011 at 10:24 am
blather \ˈbla-thər\
intransitive verb
: to talk foolishly at length —often used with on
noun
: voluble nonsensical or inconsequential talk or writing
##############################
Perhaps you, BiL, are an expert on blather. I am not such an expert.
Are you an expert because you throw blather at anything you cannot trouble yourself to actually understand?
Not being competent in blather, I have no way to know or understand that.
Perhaps you can enlighten me with more of your blather?
If that is what your profoundly bioengineering-ignorant comments regarding my work really are…
I really do not know, for I know not how to speak, write, read, or understand blather.
Perhaps you will be willing to help me. I can really use more help.
If I were not profoundly autistic, if I could think in words, then I might be able to tell blather from non-blather.
But it is all the same to me, connotation bereft if meaningful denotation when words are used to score competitive points, pointlessly.
blather \ˈbla-thər\
intransitive verb
: to talk foolishly at length —often used with on
noun
: voluble nonsensical or inconsequential talk or writing
RE: Buddha Is Laughing, March 7, 2011 at 12:57 am
And you give me antisocial trollery to shoot down.
So I guess that makes us even, windbag.
############################
Sometimes a quote from a book, used within fair use notions, is usefully used repeatedly, because it is as though unnoticed for several times.
Chapter 2 of Albert Einstein, “Out of My Later Years,” Philosophical Library, New York, 1950:
[begin quote from Out of My Later Years]
SELF-PORTRAIT
Of what is significant in one’s own existence one is hardly aware, and it certainly should not bother the other fellow. What does a fish know about the water in which he swims all his life?
The bitter and the sweet come from the outside, the hard from within, from one’s own efforts. For the most part I do the thing which my nature drives me to do. It is embarrassing to earn so much respect and love for it. Arrows of hate have been shot at me too; but they never hit me, because somehow they belonged to another world, with which I have no connection whatsoever.
I live in that solitude which is painful in youth, but delicious in the years of maturity.
[end quote from Out of My Later Years}
It has been brilliantly and correctly pointed out by some commentators here that I am “not an Einstein.” That is absolutely true. It is no less nor more true that Albert Einstein (Nobel Prize recipient) was no J. Brian Harris.
Of what is significant in the life of J. Brian Harris, J. Brian Harris is profoundly and deeply aware. By all I have been able to learn, Albert Einstein did not have parents who were autistic, high-functioning, and very greatly self-aware to such an extent as to accept their profoundly autistic younger son, J. Brian Harris, as being neither more nor less “normal” than anyone else, for the parents of J. Brian Harris, being autistic, had come to regard their being autistic, though they never used that word in describing themselves to me, J. Brian Harris, their younger, profoundly autistic son.
Self-awareness is perhaps a central issue for existence. By what process does existence itself develop self-awareness such that the progeny of existence in human form can be given self-awareness from existence itself? Wherefrom comes existence, such that existence takes upon itself the form whereby existence exists as it exists, observable moment by moment, observable place by place?
Albert Einstein was not a Registered Professional Engineer, Albert Einstein never solved that “unified field theory” problem, Albert Einstein never resided in Door County, Wisconsin. There are plausibly millions and minions of ways in which Albert Einstein never accomplished things which J. Brian Harris has accomplished, just as there are countless things J. Brian Harris has accomplished which Albert Einstein never accomplished.
Were I to guess (and what is a guess?), I would guess that the greatest contrast of significance between Albert Einstein and J. Brian Harris is quite simply that J. Brian Harris is intensively and extensively aware of “the water in which he has been swimming.”
Firstly, I was very aware of the “water” (amniotic fluid) in which I swam as a fetus. Secondly, I was very aware of the water in the swimming pool in the basement of Sayles-Hill Gymnasium, at Carleton College, where it was as though J. Brian Harris swam into that eighth heaven from which could be seen as though below the seven heavens of Biblical-Koranic telling, replete with all that the Prophet Mohammad reported from his night ascension and more. Words are merely connotations and are never what they connote.
The original version of the movie, “Twelve Angry Men” did not come out the year Albert Einstein began college or university studies and did not frame Albert Einstein’s freshman year class in Sociology at Carleton College because, unlike J. Brian Harris, Albert Einstein never attended Carleton as a student. Albert Einstein did not use Thorstein Veblen as an exemplar and drop out of Carleton after collecting the useful knowledge he found Carleton had to offer, as J. Brian Harris did.
Albert Einstein lacked the severity of autism which led to it taking until J. Brian Harris was of age 59 before J. Brian Harris was able to finish his Ph.D. degree.
Albert Einstein was no J. Brian Harris.
J. Brian Harris was no Albert Einstein.
Life is like that.
No person is another person, when a person is taken in total.
What useful wisdom may those who live the Twelve Steps have to offer?
How about, “Don’t compare!”
I guess “windbag” is a single word for a longer phrase, perhaps, “profoundly autistic person making an effort to learn more about how words work and how words do not work, doing so in a characteristically profoundly autistic way.”
“Windbag” is certainly more compact. Only, might it be a tad pejorative?
I do not fault people for being profoundly lacking in autism.
I do have little pangs of sadness as I learn more and more about the seeming (to me) poverty of the inner lives of those who appear to me to be seriously to profoundly lacking in the sort of self-awareness which I observe is possible only for those who have retained almost all to all of the infantile autism condition in which it appears to J. Brian Harris to be that with which every fetus is born.
The study of imago projection is interesting, tragically interesting. The study of idealized parent imago projection is only tragically interesting at best, as it is observed by J. Brian Harris.
The bottom tier muck is stirring itself. Is it finally awakening?
The muck sits upon the bedrock, the top tier laid its foundation upon the muck and the muck is stirring itself.
What will become of the edifice the top tier built for itself upon the muck, for the muck unwittingly hid the bedrock from the top tier?
How does that line go from Monty Python’s “The Life of Brian”?
“Blessed are the cheese makers”?
I sure do like Renard’s cheese, made in Door County.
Yummy. Feels good in the tummy. Go, Door County.
Door County? Named for the strait between Gills Rock and Washington Island?
“Portes des Mortes”?
From Patricia Schultz, “1000 Places to See in the USA and Canada Before You Die,” Workman Publishing, 2007. from Google Books:
“You’ll find greater solitude when you venture on Door County’s “lake side” or its northern reaches, where low-key resorts lie hidden along sand beaches and rocky bays. You won’t reach the end of the county until you’ve hopped a ferry across the Portes des Mortes Passage (“Death’s Door”) to Washington Island, then another to Rock Island State Park.”
Rock Island was the “summer estate” of electrical inventor, Chester Thordarson, who, among other items of significance, invented the “E-I” lamination system for electrical transformer cores. The company he founded, now Thordarson Magnetics, continues in business, having been founded in 1895. I have some early Thordarson transformers, including a very large plate transformer that I may yet use to make a homebrew HF band Amateur Radio “linear amplifier.”
Death’s Door? What is death? What is life? Is there a meaningful difference? If so, why the will of one human to commit another human to death, through the adversarial process of international warfare?
The world in peace or the world in pieces?
Which shall we choose, or will we only lose?
To me, the adversarial way is the way of death.
Give me liberty or give me death?
Living a bicycle ride from Death’s Door, I prefer life and liberty, thank you.
Adversarial Way of Death? Adversarial Portes des Mortes?
Methinks I have a wiser plan, if I can.
In Madison, the chant was “Kill the Bill”
In Green Bay, at the earlier rally I attended, the one where former Congressman, Dr. Steve Kagen spoke, the chant was “Can the Bill”
Can the Bill? Yes, we Can!
Can the Adversarial Portes des Mortes Kill our Will?
Yes, it Can!
Can we stop it?
Yes, we Can!
Can the Adversarial Portes des Mortes? Yes we Can!
Door County is among the 1000 Places to See in the USA and Canada Before You Die — read the book for yourself.
La Kayim!
Yes, we Can!
We the People of the United States, in Order to form a more perfect Union…
Yes, we Can!
Union Solidarity Forever!
Yes, we Can!
A system of law that is truthful and decent?
Yes, we Can!
A system of law that is truthful and decent because it is not adverse to truthfulness and decency?
Yes, we Can!
La Kayim?
Yes, we Can!
Without fleeing to Canada as some did during the War in Vietnam?
Yes, we Can!
La Kayim?
Yes, we Can, if we work together to form a more perfect Union!
Union Solidarity Forever!
Yes, we Can!
Politics is the science of public policy, why has the public no say in the public policy of law?
Can the adversarial system?
Yes, we Can!
Can the adversarial system to build a more perfect Union?
Yes, we Can!
Why wait?
Does the Portes des Mortes await if we delay til its too late?
The only adversary we need to learn to not fear is adversary itself!
Can we Can the Adversarial System?
Yes, we Can!
If I Can, I prefer to stay in the USA, and not flee to Canada.
Can I stay in the USA?
I Can if, and only if we Can the adversarial system!
I Can not stay without a Portes des Mortes adversarial system stay of execution!
Can I stay in the USA?
Can we Can the adversarial system to form a more perfect Union?
Yes, we Can.
Is the Shill of the People the Adversarial System?
Is the Will of the People the more perfect Union?
Which is better, the Shill of the People, or the Will of the People?
How about a system of law that is kind, instead of out of its mind?
Can we Can the adversarial way?
It may be merely child’s play!
Suffer the little children to come unto us?
Yes, we Can!
Is it a valid theory of law, that the law is a law only unto itself?
I have doubts.
Can we Can the Adversarial System to form a more perfect Union?
I have no doubt!
Yes, we can!
We, The People!
Yes, We Can!
Let’s Went!
Why wait for Lent?
Yes, we Can!
And you give me antisocial trollery to shoot down.
So I guess that makes us even, windbag.
Personally insulting or invalidating? What in the whole universe gives to you the notion that anything you could ever do would insult me in any way at all? What gives to you the notion that anything you could ever do would even begin to hint at invalidating me?
My work is subject to evaluation, as is any and all work of any and all kinds, only naming something not valid is not demonstrating its invalidity.
While I am willing to accept on face value that you “don’t give a damn,” I have a little hunch that you and may have veritably opposite meaning ascribed to not giving “a damn.”
While I may have the personal integrity to withstand every sort of non-lethal abuse anyone can send my way, I happen to have known a few more people who committed suicide in response to the values I find you here espousing.
A curious feature of the Scott Walker-Tea Party thing in Wisconsin may be their believing that, Wisconsin being a hotbed of Progressivism, by knocking Wisconsin out, the rest of the states would be easy pickings.
Alas Tea Party people, taken as a bunch, which is never an accurate way to do anything, may tend to be prejudiced against the way of The Natural Step, in first picking the low-hanging fruit.
I am much familiar with The Natural Step, and it would never occur to me to start out by picking the highest-hanging fruit. However, if the high-hanging fruit is blocking needed sunlight from reaching the low-hanging fruit, so that the low-hanging fruit cannot grow properly to maturity, then it may be worthwhile to study the high-hanging fruit enough to get it to stop blocking the light from the more important low-hanging fruit.
The problem the high-hanging fruit may have with The Natural Step is that The Natural Step just might really be the natural step that nature is actually taking.
For my work, rather to my surprise, you, BiL, just keep on being a veritable data “platinum mine.” You give me data, I process the data you give to me.
So far, I find you giving me what may be the best window into the top tier that I may ever find.
Even as I write, children are experiencing abuse stemming from from the adversarial principle. That grieves me deeply.
I don’t care about your alleged autism. I don’t care about validating or invalidating your person. Your validation of self is your business.
But since you mentioned “fraud” . . .
I do care about your antisocial and tyranny promoting ideas. I will be invalidating them and by the same method I’ve used heretofore, namely pointing out the logical fallacies and when you are lying about facts and pointing out when you are being evasive or purposefully obfuscating. Like right now when you are trying to characterize adversarial process as the Big Lie when the true Big Lie is that society cannot exist without legal dispute resolution and that the adversarial court system is the best possible system as it provides for all sides to present their arguments and case before an impartial judge and jury. Far from your assertion that this creates adversity and tyranny, this due process eliminates the violence often inherent in self-help “justice” and provides a check against the tyranny of the strong over the weak.
To be perfectly clear.
If you find this personally insulting and/or invalidating?
I don’t give a damn.
Your reactions are your problem.
Because when I am addressing you and your bad ideas, you are not the object of my message.
BiL, What I want you to do more than anything is to expose me for the fraud that I am, only I understand the word “fraud” to be the exact opposite of what I am guessing you mean by using it.
There is a curious aspect of the way I do human subject research. I tell of myself and my life with such direct honesty that people who do not meet me in person, and many who do meet me in person, know with as-though absolute certainty that I cannot be who I am.
That always turns to the advantage of the actual purpose and function of my life, which is to so completely unriddle child abuse as to bring about such changes in the structure of human society as to relegate child abuse in all forms to historical studies.
When, as a toddler, I learned of little children being killed in war, I asked all the power there will ever be to give to me a life which, to the greatest extent possible, would help humanity to understand child abuse and to bring the epoch of child abuse to a decent end.
What I do is working in the manner in which I had hoped it would, though I never know in advance what form that manner will take.
I am indeed a student of the Big Lie. The Big Lie is the Adversarial Principle as an aspect of existence which was formed and in place long before the existence of animal life itself.
The more ways you attack me and my work the more you teach me about The Big Lie. And I am grateful for your help, truly grateful.
I continue to pose a legal theory question which may be of significant concern to people who are sufficiently aware of the nature and form of child abuse, such as people well familiar with the work of Alice Miller, and the list of scientists who have studied child abuse and childhood trauma is extensive.
The irony for those who may believe that I can be threatened or coerced into any form of capitulation of my conscience is that i have been bullied and otherwise abused so very many times without ever capitulating that I doubt that there is anyone who can persuade me to capitulate or concede against the will of my conscience.
Thus, I comment here because I continue to have a concern regarding a foundational aspect of legal theory, and I continue to find no regular or irregular commenter here who will fully engage with me in an authentic dialogue regarding the merit, or lack thereof, regarding the work I do. This is neither something I expect nor something I do not expect.
Furthermore, as I work in accord with the guidance of my conscience, I will not be persuaded to do anything which goes “against the grain” of my conscience.
If bullying words were able to persuade me to abandon my conscience, surely the coercive murder(ers?) I have known would have so coerced me.
The legal theory question, which has not here been addressed save by what I find to be categorical, prejudicial rejection without any actual dialogue on its detailed merits (or lack thereof) is within the parameter range I had deemed possible, though not at all what I had, before beginning to comment on this blawg, deemed what I would prefer.
I have a few minutes of video from the Wisconsin State Capitol demonstration at which I was yesterday, Saturday, March 5, 2011. When I get the video processing computer suitably set up, I expect to put the video, edited to remove portions when the camera was not usefully aimed, and plug the stuff into YouTube. I found someone who was willing to take a short video of me and my four-sided placard…
Nothing has yet happened which demonstrates to me that the legal theory concern of my bioengineering research is other than a valid concern.
From pages 40 and 41 of Clare Sainsbury, “Martian in the Playground, Second Edition,” A Lucky Ducky Book, Sage Publications, London, 2009:
“Because the e-mail list I run focuses on university issues, the hundreds of people with autistic spectrum conditions with whom I am in touch include people who are probably among the most high-functioning and successful autistic people in the world — people with degrees, people with PhDs, people holding down jobs, even two people who are married. Not one of these people result from any of the supposed “miracle cure” treatments or educational programmes and not one of them is in any way “cured”.”
I was a member of that e-mail list. Reading that book by Clare Sainsbury might help those who reject my actual existence to better understand that autistic people may differ from non-autistic people in ways that are bewildering to some non-autistic people…
For me, primacy of conscience beats beating other people verbally and in every other way I can imagine.
One of the most fascinating characteristics I have noticed among the non-autistic is a proclivity among a few non-autistic people to claim that I am abusing them by declining their invitation of allowing them to abuse me.
That is remarkable, to me, for sure.
And tragic.
Well, so much for being reasonable and that indeed tells me everything I need to know.
Crank with a dose of propaganda troll.
Feel free to blather all you like, Brian.
Just learn to realize I’m still going to expose it for the Big Lie that it is when you stray into Big Lie territory.
But since you’re not really serious about ways to improve the law, only attempts to discredit its value to society, I’m not going to address you anymore on that topic seriously and will only deconstruct your nonsense.
Sometimes, in my old age, I briefly forget something. Come to think of that, that also happened in my young age, also.
At Hope United Church of Christ, Sturgeon Bay, Wisconsin, the wine for communion is unfermented. Some people call unfermented grape wine, “grape juice.” Ethanol is present only in trace amounts at the very most.
If there were altar boys or altar girls at Hope Church, they could chug-a-lug the whole supply of communion wine and never be caught, as in the movie, Doubt, with alcohol on the breath.
It appears to me that Hope United Church of Christ is a vastly safer place for children than is any church in which fermented (significantly ethanol-containing) grape wine is used for communion services.
Hope United Church of Christ (then known as Hope Congregational Church) was a very safe place for me during that of my childhood and early church membership when I attended Hope Church…
Would that every child could know, experience, and understand such profound and authentic safety…