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
Whoops. Please substitute “Indiana” for “Wisconsin.”
The difficulty here is not with what was said, but with the fact that the speaker’s anonymity was compromised. Of course the statements were crude and outrageous. That in and of itself would be insufficient to warrant any disciplinary action. However, once the identity of the speaker and his position with the State of Wisconsin became known, it became a matter of legitimate concern to the employer. Mr. Cox knew or should have known that at least some members of the public would conclude that his statements were representative of certain attitudes within the office of the Wisconsin Attorney General. If the public comes to believe that an official of the agency of the state charged with enforcement of its laws espouses lawlessness an an appropriate response to political disagreements, the faith of the public in the fairness and integrity of the agency is seriously impaired. Accordingly, the termination of Mr. Cox was justified.
“I have extremely irreverent sense of humor (people worry about taking me to funerals)” (Rich)
======================================================
lol
Excellent illustration defining your assertion of irreverent humor … you are invited to my funeral … I’ll put it in my will …
Typo … DAG, not ADA
Mr. Cox’s argument doesn’t sound very convincing to me.
*****
“The question is why he was not simply given a warning about such comments and how they reflect upon the office.”
*****
How old is Mr. Cox? If he doesn’t have the common sense to understand how such comments reflect upon his office, maybe he’s not mature enough or intelligent enough to hold the office of Deputy Attorney General.
Mespo, Nal and Buddha, hit the nail on the head. Mr. Cox doth protest too much. When you suggest “use live ammunition” in the context used, isn’t that akin to yelling fire in a crowded movie theater? AFter the Tucson shootings and all of the right wing going crazy with their conceal and carry legislation, and the firestorm over union killing plans in Wisonsin and Indiana at that moment, this comment becomes very dangerous. I don’t like it when people lose their job, but he deserved everything that he got. All he had to do is add a smiley face after his alleged joke and he would have had an argument. Buddha is also right that Indiana deserves better.
Sorry, Jeffrey. I don’t buy it. You are (well, were) an ADA, and should be held to a higher standard. You are (were) a representative of the Indiana Attorney General’s Office, not an associate with Dumbf**k & Associates.
Your position does not allow for you to spout off such nonsense – and violent nonsense at that. How is the private citizen to trust your objectivity and your legal obligation to represent them fully and fairly, when those people might be someone you believe is liberal Nazi scum?
“Jest”, my ass. “Knock, knock, who’s there?” is a joke; the vileness you posted is not.
“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,…” ~article
____________________________________________
mmmmmmmmmmmmmmm…….,this is a tad shifty to me….ala ‘it was mine…I was doing them a favor…… they said I could….’
….whose time (dime) was he blogging on?
I have extremely irreverent sense of humor (people worry about taking me to funerals), but I’m not buying the “it was a joke” defense. As a factory worker’s kid, I’m also not necessarily buying the “blue collar” defense–the children of blue collar workers are often the biggest snobs about status and the first to look down on unions, rank and file public employees, non-professionals, etc. My experience is that I tend to be the exception to this, as I retain a working class distrust of middle class professionals despite becoming one (or perhaps because of seeing what nitwits and snobs they can be). Most other upwardly mobile blue collar kids tend to go the other way and become annoying defenders of the status quo.
I was surprised that the AG’s office was so swift in its termination and may have expected him being put on leave pending an investigation or on some sort of probation. The “making us look bad” defense would make sense if he was a political appointee but seems inappropriate for a civil servant. The lack of connection with official duties seems clear up to a point—no one would necessarily know that his areas were far removed from the issues at hand. His choice of this topic could, with minimal investigation (as done by Mother Jones) lead one to think that this was part of another state interfering with the affairs of Wisconsin, rather than just shutting up.
This is indeed one of those “words have consequences” moments, mespo. And what Nal said. And I know funny. This wasn’t funny nor was it an attempt at humor that failed. It hasn’t a single resemblance to a joke in construction or execution. When one of my jokes fail, I at least own it – sometimes with a disclaimer beforehand even if I know it’s dubious. The least Cox can do is own his statements and not hide behind weak excuses. The least, that is, should he want to preserve any shred of dignity about this affair. The statements – for the reasons mespo pointed out – were of the sort to cause a substantial interference with the ability of the employee to continue to do his job. He demonstrated a willingness to oppress the rights of others with violence and physical threat. That is hardly appropriate behavior from a Deputy AG sworn to uphold the laws of the land and protect the Constitution, including the rights to free speech and free assembly.
Isn’t that what a raging asshole always claims? That their comments are “just a joke” and that people need to “lighten up” and not take their “jokes” so seriously?
My wife’s a teacher. I didn’t find his “joke” funny at all; in fact, with the political climate being what it is, and one political mass murder under our belts for the year so far, I find his “joke” terrifying; a direct threat to my family.
Blouise and mespo727272 both make most excellent points above and I agree with them. I might also add that when Mr. Cox lands a job in the private sector (it’s going to be difficult with such a public display of poor judgment so prominently on his record) his new employer will not show the tolerance towards his comedic blogging that his previous employer did.
If I pulled a stunt like that at my current job, I’d be fired. End of story.
I’m not buying the “in jest” argument. His statements seemed to come from the heart, not the funny bone.
I think JT is very generous with his time to talk with this guy and then write it up.
The critical question, as I mentioned earlier, is “Would you want this lawyer’s judgment determining the course of any important issue in your life?” The “I was just joking” defense, and the “I was just starting debate” defense, along with the “I didn’t identify myself with my official office” defense eloquently speak to this issue of character competent enough to justify one’s trust. Personally, I think the citizens of Indiana deserve much better and I have no qualms with the employment action.
Young Mr. Cox has every right to First Amendment protections for his speech. What he doesn’t enjoy is a right to his employment in a responsible position. As my friend Buddha reminds us on appropriate occasion, “words have consequences.” It is ironic indeed that one calling for the violent censorship of his fellow citizens as they exercise their own free speech protections seeks to shield and mitigate his own vile words by that very right — ironic and hypocritical, I might add.
“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.”
Perhaps that is the real “free speech” question and he is welcome to litigate it and perhaps, after a few years, he will win. In the mean time he’s going to have to find a job and the real question prospective employers will be asking is: “Mr. Cox, have you developed any common sense where the issue of free speech is concerned?
Snark is difficult in 140 characters. His comments were way out there, even threatening to a degree. That said, I think you’re right. Does the state own his private life in addition to his public life? There’s a scary thought!
Was there any reason to be concerned that his private views were influencing his public actions? If not, this is one of those tough ones where even though what he said blows past intolerance and into crazy town, he still has the right to say it. Would that be different if violence were incited? Don’t know. But, it would seem that he played by all of the state’s rules and is now getting burned because his non-public life comments were unfunny at best or intolerant and disgusting at worst and the state wants to distance themselves from him after saying he could do what he did. Kind of like stepping away from your pals when the cops show up… Weak.
Amen millsapian87.
>He said that he made a great number of comments designing to start debates and often meant in jest.
“It was just a joke” is the first refuge of the scoundrel. I wish I had a nickel for every time some a-hole said that when called out on something offensive (and unfunny).
Color of Office…sorry…..I think you are held to a higher standard…. If he was advocating using lethal and/or criminal matter to settle the issue in Wisconsin….then….I would say that it may not be within the purview of his office but still people will rely on his statements as justification… I would put it with yelling fire in a theater…. But thats just me….
He should have put a little ‘smiley face’ after his “use live ammunition” tweet.