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
W=c,
“Agreed, sortof….when mediation occurs voluntarily it asserts that there is a proclivity towards solution beyond adversity, no?
And if not….there should not be that attempt to mediate but go directly to lawsuit, do not pass go…do not collect $200.”
No. The only thing mediation asserts is that there is a possibility of resolution without involving the courts (and ergo the associated costs and some restrictions on outcome posed by law), not that the adversity inherent in the situation doesn’t exist. Adversity is inherent in the dispute. Solution resides in a result/resolution that all parties of the dispute get through either a binding arbitration/mediation agreement or through adjudication.
Again, you are trying to refute fact with belief. Adversity is a fact of nature. Animals want to eat and not be eaten.
Shouting in bold italics won’t change that.
Any dispute, mediated or litigated, is going to be adverse at its core and the process to resolve them is going to have to reflect this reality.~Buddha
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Agreed, sortof….when mediation occurs voluntarily it asserts that there is a proclivity towards solution beyond adversity, no?
And if not….there should not be that attempt to mediate but go directly to lawsuit, do not pass go…do not collect $200.
The Dedication in Karl Popper, “The Poverty of Historicism,” Routledge Classics, copyright 2002, The Estate of Karl Popper:
“In memory of the countless men, women and children of all creeds or nations or races who fell victim to the fascist and communist belief in Inexorable Laws of Historical Destiny.”
I find that resolutely unshakable belief in the adversarial principle is a significant exemplar of belief in the “Inexorable Laws of Historical Destiny.”
I categorically and unequivocally reject any and all versions and varieties of “Inexorable Laws of Historical Destiny.”
I categorically and unequivocally reject any and all versions and varieties of any form of “Inexorable Laws of Historical Destiny” which purport to deny the unfolding Perfect Union of Religion and Science.
The Unified Field Theory may be thus stated, in connotative form:
EXISTENCE AFFIRMS ITSELF!
Brian,
“The Adversarial Principle NECESSARILY EXCLUDES the Affirmational Principle; else the Adversarial Principle would be incapable of being Adversarial.”
BZZZZZZZZ! Wrong answer in attempt at mischaracterization!
The use of legal dispute resolution in the adversarial mode affirms both equity and justice which in turn affirm social stability and peace, ergo the use of legal dispute resolution in the adversarial mode works to affirmation by adversity.
W=c,
Mediation is important and an alternative to suit that I encourage where possible, however, it is still an adverse process. Without a dispute – an adversity of opinion and/or fact – there would simple be no need to mediate. Adversity (and this is key to why Brian is wrong) is a naturally occurring state of polarity. Any dispute, mediated or litigated, is going to be adverse at its core and the process to resolve them is going to have to reflect this reality.
The Adversarial Principle NECESSARILY EXCLUDES the Affirmational Principle; else the Adversarial Principle would be incapable of being Adversarial.
— LIKEWISE —
The Affirmational Principle NECESSARILY INCLUDES the Adversarial Principle; else the Affirmational Principle would be incapable of being Affirmational.
Some polarities are irreconcilable. ~Buddha
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yes
which is why mediation is important…and IMHO should NOT be adversarial 🙂
I am both a lover and a fighter.~Buddha
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…another obvious fact….I do believe that I am jealous!
What can I say, bdaman.
I am both a lover and a fighter.
🙄
I have already paid the required deposit with the Innkeeper, and the room is already prepared and waiting.
Wow Buddha, first I proclaimed I am ready and now an offer from Dr. Harris. 🙂
W=c,
All that is required to end the challenge is to end the undefended – and I am certain indefensible – assertion (for without proof its constant repetition is merely antisocial propaganda) or defend it adequately to refute the challenge without resorting to bad logic, distortions or magical thinking. As to polarization? But of course we’re polarized. I’m for truth, civilization and the rule of law. He, by the very nature his assertion, is not. Some polarities are irreconcilable.
“There are some ideas worse for civilization than the idea than removing the option of dispute resolution in the adversarial mode, but not many. An important function of the courts is indeed safety, but for society to continue requires more than just safety. It requires equity and justice. Inequity and injustice do more than just create a safety risk for society.”~Buddha
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Amen to that, and thanks for doing that job…I wish more in your profession took their role that seriously and did it that well. And the Marcus Aurelius quotes…:)
It’s just that you 2 seem so distinctly polarized that the product is becoming…well…an issue….;)
RE: Woosty’s still a Cat, February 26, 2011 at 6:51 am
and Buddha (no offense but…) maybe you and Dr.Harris should get a room….
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I have already paid the required deposit with the Innkeeper, and the room is already prepared and waiting.
The room will be held indefinitely, waiting for as long as is needed, even if longer than beyond eternity.
…and The Dance goes on…
W=c,
No offense, but good luck trying to get me to stop hindering the propagation of bad ideas, but especially ones that are destructive to society. It’s my nature. The same goes with propaganda. The success of propaganda relies largely upon unchallenged repetition. Challenge and adversity are not always bad things. They drive change. To quote Duke Leto Atreides, “Without change something sleeps inside us, and seldom awakens. The sleeper must awaken.” And to quote JFK out of context, “We do not do these things because they are easy but because they are hard.”
There are some ideas worse for civilization than the idea than removing the option of dispute resolution in the adversarial mode, but not many. An important function of the courts is indeed safety, but for society to continue requires more than just safety. It requires equity and justice. Inequity and injustice do more than just create a safety risk for society. Allowing them to go unchecked appeals to the worst elements of human nature. Indeed, it encourages them. Without equity and justice, we are all barbarians subject to the tyranny of the strong over the weak. Without laws and moderated dispute resolution – which by its very nature must be an adverse process – society lacks the tools to prevent barbarism.
Barbarians at the gate?
Removing the function of courts simply gives them the keys.
and Buddha (no offense but…) maybe you and Dr.Harris should get a room….
ad·ver·sar·y
/ˈædvərˌsɛri/ Show Spelled [ad-ver-ser-ee] Show IPA noun, plural -sar·ies, adjective
–noun
1.
a person, group, or force that opposes or attacks; opponent; enemy; foe.
2.
a person, group, etc., that is an opponent in a contest; contestant.
3.
the Adversary, the devil; Satan.
[youtube http://www.youtube.com/watch?v=0SLifea3NHQ&w=480&h=390%5D
“Why do people keep messing up their lives and the lives of others? Because the adversarial principle is adverse even to lives not messed up, because the adversarial principle is the grand poombah mess up of all possible eternities?” Dr. Harris
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Dr. Harris, I agree that the ‘adversarial’ process has gone waaaaaay too far in many forums…most especially in law where it is often used as an excuse to cause damage rather than to shine the light of reason on some situations….that said, there is no perfect world without some adversity…no real safety without some regard for those elements that cause harm….if we are looking ONLY for safety we are also looking for a cage….
Brian,
Actually, the approximate weight is widely recognized as 1 and the more precise number I used is simply a function of rounding. You can blather about hydrogen some more because endless evasion is just furthering my assertions about your inability to defend your idea.
Or you can defend your idea, in the forum you presented it, in the forum it was challenged.
Buddha, I was only kidding!
I love the adversarial system. Anything can be declared a fact by default.
Oh. Sorry. Me rong.
My handy Handbook of Chemistry and Physics is wrong! How could they make such a stupid error?
In that book, the atomic weight of Hydrogen is incorrectly listed as being 1.0079, so the book is obviously wrong because I have on perfect authority the absolute fact that the atomic weight of Hydrogen is exactly 1.
Scientists are so stupid. Pity.
I can hardly wait until the Congress repeals the law of identity.