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
Nice has noting to do with public duty. If I were always nice, I’d have never graduated law school. Besides, “killing someone with kindness” is a truism for a reason. Sometimes caring means saying “No.” Sometimes saying “no” gets you called a “big meanie”. Ask any responsible parent. Plus, suffering fools – or manifestly destructive ideas – gladly is not a virtue. For all that is required for evil for flourish in the world is for good people to stand by and do nothing.
Bertrand Russell, “Why I am not a Christian”, the Touchstone paperback, page 151, in the chapter, “Nice People.”
In general, nice people leave the policing of the world to hirelings because they feel the work to be not of such as a person who is quite nice would wish to undertake. There is, however, one department which they do not delegate — namely, the department of backbiting and scandal. People can be placed in a hierarchy of niceness by the power of their tongues. If A talks against B and B talks against A, it will generally agreed by the society in which they live that one of them is exercising a public duty, while the other is actuated by spite; the one who is exercising the public duty is the one who is the nicer of the two…
Obviously, I am not a nice person. Nice people watch a war movie and talk about how nice the movie was. Nice people attend a memorial service for victims of violent torture-murder and talk about how nice the homily was.
By no consent of mine will I ever be a nice person.
Were it ever allowed, I would gladly be a kind and honest person.
If not in this world, when?
Blank has the right to spread illogical ideas with no proof that are detrimental to civilization and do so unchallenged.
What is “No one”, Alex.
I’ll take “Desperate Propagandists” for $500.
Robert Fulghum, “All I Really Need to Know I Learned in Kindergarten”:
“There is a terrible and wondrous truth working here. Namely, that all things live only if something else is cleared out of the path to make way. No death; no life. No exceptions. Things must come and go. People. Years. Ideas. Everything. The wheel turns and the old is cleared away as fodder for the new.”
From page 147 of the Ivy Books paperback I have in hand.
The time-corrupted logic of the past is as the needed fodder for the flowering of the Affirmational Principle.
Who really has such power as to deny to existence its right to repair itself?
Awwwww.
Going to talk to the Prof to see if you can silence my “mistake” in taking your assertion to task? Knock yourself out. Talk to whomever you like.
In the mean time, how about you providing some logic and proof, sport? Hmm? Why not?
Not ready? We wouldn’t understand? It’s unethical to defend your own postulates?
That’s just adorable!
Citing irrelevant or misapplied sources is not proof, nor is citing your own authority by reference to your dissertation.
Your logic is still faulty as a matter of the operation of the rules of logic.
The only mistake made here is by you in believing you can assert something as true – especially something demonstrably dangerous to society – without proof or logic and expect it not to be challenged.
out of, not our of…
Life may be interesting. I just finished talking with a “GW” graduate who indicated that he knows Professor Turley.
I called him about a little problem of mutual concern, one that is of possible dispute, and he and I found that the method I use resulted in no adversarial aspects whatsoever, while also resolving a “mistake” without adversarial disputation.
Perhaps I will eventually ask him to connect with Professor Turley.
Anyone note how I give a bunch of different sources of information, all of which can be independently verified by anyone willing to bother verifying them, while others seem to me to only give personal opinions under the guise of objective fact?
Curious, said the tail of that Cheshire Cat, deep down in the rabbit hole.
I continue here because I find it possible to do so, and to avoid messing around with other threads, our of respect for those who read and perhaps also comment here.
And that’s the point of tactical obfuscation, AY.
Hey! Isn’t that a giant ape climbing the Empire State Building!
It’s the human equivalent of “Confuse a Cat”.
Buhha,
What is Brian rambling about….. I think the discussion has moved on….not sure what the topic was anymore…
All that blather and still not a cogent defense of your idea. Tsk, tsk, tsk. The evidence mounts that you have no proof or logic to defend your assertion. Only your personal vendetta against the legal system and an untenable, illogical and indefensible assertion that you clothe in obfuscation, lies and excuses when the logical validity of your idea is challenged. Like a temper-tantrum throwing child wanting to tear down the house because his fingers got pinched in the bathroom door. Your desire to harm society – conscious or not, but certainly contained in your inherently antisocial message making the message harmful in effect – may have a causal connection in harm you have endured. However, that makes said desire no less irrational nor does it make your assertion any less irrational. You can repeat your Big Lie to yourself. Please do if it makes you feel better. But when you repeat it to others? Especially if they are of weak reasoning and believe you? You are becoming that which you claim to despise – harmful. To the individuals and to society as a whole, you are asking them to abandon the rule of law and invite tyranny and anarchy into their lives . . . all because you were personally hurt and disappointed. Misery loves company, but if you truly wanted to be helpful to others? You’d keep it to yourself rather than spread it about in an attempt to destroy a social mechanism that protects them, no matter that it protects them imperfectly.
Fortunately, there was a front page piece in the Detroit Lakes (Minnesota) Tribune regarding the swimming incident in which my body was on the bottom of the Carleton pool, in the basement of Sayles-Hill Gymnasium, on March 15, 1960, and fortunately I have (most of?) my class notebooks and fortunately both my roommate at the time of the incident and my roommate during the fall, 1960 semester, during which I finished my three semesters at Carleton, are alive.
Carleton College is not much help, and I would guess that there was the usual sort of suppression of bad news records that is characteristic of the adversarial mindset as I can fathom it.
Came yesterday, via email:
——– Original Message ——–
Subject: your records at Carleton
Date: Fri, 25 Feb 2011 15:32:23 -0600 (CST)
From: Nat Wilson
To: drjbrianharris@ (not @yahoo.com, the address I have intentionally made rather public)
CC: Eric S. Hillemann
Hi Dr. Harris,
I looked in all the paper and microform records that we have on you and talked to the main archivist here about records relating to your accident in the Carleton pool. The records talk about your admission application, some of your course work and donation history, but I could not find anything on the incident you described. I’m sorry but I don’t think we are going to be able to help you with your research. Good luck and let me know if you have any other questions.
Nat Wilson
Digital Archivist and Library Technology Coordinator
Carleton College Library
1 N. College Street
Northfield MN 55057
507.222.4265
nwilson@carleton.edu
Methinks folks dislike “bad news” so much that the actions of dislike make “bad news” astonishingly more common than it would be were “bad news” no less welcome than is “good news.”
Missed a typo:
“Who are you?” asked the little prince, and added, “You are very pretty to look at.”
Mistakes happen.
Forgiveness for mistakes made?
I forgive without limit.
Deception is not my name,
Deception is not my game.
No one shall I ever blame.
The world of the broad path is a crying shame?
No, it merely needs to become tame!
.
.
.
Antoine De Saint-Exupéry, The Little Prince, XXI
It was then that the fox appeared.
“Good morning,” said the fox.
“Good morning,” the little prince responded politely, although when he turned around he saw nothing.
“I am right here,” the voice said, “under the apple tree.”
“Who are you>” asked the little prince, and added, “You are very pretty to look at.”
“I am a fox,” the fox said.
“Come and play with me,” proposed the little prince. “I am so unhappy.”
“I cannot play with you,” the fox said. “I am not tamed.”
“Ah! Please excuse me,” said the little prince.
But after some thought, he added:
“What does that mean — ‘tame’?”
“You do not live here,” said the fox. “What is it that you are looking for?”
“I am looking for men,” said the little prince. “What does that mean — ‘tame’?”
“Men,” said the fox. “They have guns and they hunt. It is very disturbing. They also raise chickens. These are their only interests. Are you looking for chickens?”
“No,” said the little prince. “I am looking for friends. What does that mean — ‘tame’?”
“It is an act too often neglected,” said the fox. “It means to establish ties.”
” ‘To establish ties’?”
“Just that,” said the fox. “To me, you are still nothing more than a little boy who is just like a hundred thousand other little boys. And I have no need of you. And you, on your part, have no need of me. To you, I am nothing more than a fox like a hundred thousand other foxes. But if you tame me, then we shall be in need of each other. To me, you will be unique in all the world. To you, I shall be unique in all the world…”
“I am beginning to understand,” said the little prince. “There is a flower…I think she has tamed me…”
“It is possible,” said the fox. “On the Earth one sees all sorts of things.”
“When the work I am doing is adequately finished so as to be capable of its truth being trivially easy for a typical year and a half old child to appraise, then the requested “proof” will be put in the public domain.”
In other words, you have no proof and the proof you allegedly have “we’re just not smart enough to understand because compared to your Galileo-like intellect, we are all just babies.” Sorry. But many of the regular posters and indeed regular readers are frighteningly intelligent. “I’m not ready and you wouldn’t understand” is not a defense of your idea.
“Good Grief! I continue to truthfully describe the difficulties I encounter, as an autistic person being autistic as I am, in finding words that work decently. I do not yet have the needed words, and I shall not tolerate being coerced through bullying into deluding myself that I have attained suitable words before their time has come.”
You didn’t have any problems expressing your idea prematurely or trumpeting about how true they were and what a genius you are so you shouldn’t have any problem defending your idea prematurely, genius. Measure twice and cut once, ya know. But you’ve had your idea challenged and that’s abusive because you can’t and won’t defend it because we’re just children compared to your towering intelligence.
Awwwww. Poor lil’ martyred and misunderstood you. If you didn’t want your assertion challenged?
Tough. You shouldn’t have made it in a free speech forum full of critical thinkers, many of them trained in logic and argument, all of them thriving on proof. This isn’t about you. This is about your idea. You released it into the wild proclaiming the truth of it as if it were gospel and when challenged, you lied, obfuscated, used false equivalences, insulted other people’s intelligence, pitied yourself and now try to float that “you’re not ready”.
Defend your idea or else be content that everything I’ve challenged about it is true.
The rest is whining, evasion and obfuscation.
Is it possible that Daleks have taken on human form?
[youtube http://www.youtube.com/watch?v=qmp0aUFvoQ0&w=480&h=390%5D
From Max C. Otto, “Science and the Moral Life,” The New American Library, 1949. (I have in hand a falling-to-pieces paperback Mentor Book printing.)
From the opening paragraphs of Chapter 5, “Scientific Method and the Good Life”:
The social problems resulting from the wide dissemination of scientific knowledge are problems of peculiar difficulty. Possible solutions are not easy to think of and harder to put into effect. They are problems of such importance, however, that every opportunity to see them more clearly must be taken advantage of.
It would help us all, in the first place, to clarify our conception of science by doing away with a number of vital errors. One of these is a confusion between science as it actually is, and the aura of myth and legend which envelops it. Popular science is not science as conceived by the scientist. It has a good deal of magic and the miraculous about t, and very little of the scientific temper. Belief in science may even be a form of superstition. For superstition is a frame of mind. It is a manner of believing, far more than it is this or that belief. The attitude of many people toward institutionalized science is not unlike the superstitious credulity of the average medieval man or woman toward institutionalized religion. They believe in Science and in what scientists tell them very much as their ancestors believed in the Church and what they were told by their priests.
There is abundant reason why this should be so. A man cannot read a newspaper or listen to a radio without being told of ideas emanating from science which he can only accept on faith. His mind is bombarded by half-understood scientific pronouncements which are advertised to have the profoundest bearing on his life, the truth of which he is unable to determine…
When the work I am doing is adequately finished so as to be capable of its truth being trivially easy for a typical year and a half old child to appraise, then the requested “proof” will be put in the public domain.
Good Grief! I continue to truthfully describe the difficulties I encounter, as an autistic person being autistic as I am, in finding words that work decently. I do not yet have the needed words, and I shall not tolerate being coerced through bullying into deluding myself that I have attained suitable words before their time has come.
I live in a world of actual process, and not in a mythic world of pointless points pointing to nothing.
My world is much as the world described by Matthew Fox, in his “Original Blessing.” I have in hand the 2000 Jeremy P. Tarcher/Putnam thirteenth printing.
As his earthly reward for doing the sort of work I do, Fox was “dismissed by the Dominican Order” (the Order of Preachers) “in 1993.”
It seems to me that everyone who makes a genuine effort to live as I live, an effort to live in accord with the Affirmational Principle, is subject to abuse by those who act in accord with sincerely believing in the Adversarial Principle.
That harshness happens as response to affirmation may be the most profound validation of the Affirmational Principle ever actually possible.
“Adversity is inherent in just about everything…is it also the purpose of the legal system?”
No. The legal system is a process to resolve adversity and minimize the damage to the social fabric that self-help and violence incur. A purpose (but not the only purpose) of the legal system is to bring about resolution, not end adversity itself. Because adversity is a simple part of nature, the best we can do is mitigate the damages, but seeking to eliminate it is a fool’s errand.
“Because too much adversity in the process itself …well how does THAT serve anyone but the lawyers??
The process is adverse because disputes are adverse and the process must reflect that realty to find a solution. It is impossible to have a disagreement without it being adverse. The excess of adversity in the system comes from the disputes of clients – we are an overly litigious society and not every dispute merits suit as we see by stories regularly posted to this very blog – and overzealous and/or greedy lawyers who push the limits of abusing process and/or maximize their billings to clients bent on revenge and/or victory at any cost – also reflected in the stories posted here. No system is perfect, but it is still better than telling the clients “Here are a couple of knives. You two step out into the parking lot and resolve your problems.” Such systemic abuses can be minimized by system improvements such as more severe penalties for filing frivolous suits for both attorneys and clients. But you can believe this too – lawyers, like most people in business, would prefer to make money as quickly as possible and with as little effort as possible. Unless they are simply milking a client, a pre-trial settlement – although possibly less profitable than a judgment – is a preferable solution.
Adversity is inherent in just about everything…is it also the purpose of the legal system? Because too much adversity in the process itself …well how does THAT serve anyone but the lawyers?
“The fact that the work of my family cannot exist within the boundaries of the Adversarial Principle has, as I observe, been repeatedly and amply demonstrated in many of he comments posted to the Professor Jonathan Turley Blawg.”
That is simply because your “work” cannot withstand critical scrutiny and challenge – a requisite of both good science and good law.
“I am not defending the value of my family’s work within the boundaries of the Adversarial Principle because of the simple, and perfectly tragic, fact that the work of my family exists only absolutely and totally outside the boundaries of the Adversarial Principle.”
Again, you are not defending the value of your work because it has no valid defense and only a demonstrable negative value for society.
The rest of your blather?
Disputes, adverse by their very nature and arising from natural interaction between human and within their environment, have two sides a minimum. Resolution therefor demands that either one side wins and the other loses, that the dispute is a nullity and all side suck it up and go home or that mutual accord be reached – accord which may or may not be to every concerned parties satisfaction.
From the INTRODUCTION of Karl Popper, “The Poverty of Historicism,” the first paragraph:
“Scientific interest in social and political questions is hardly less old than scientific interest in cosmology and physics; and there were periods in antiqity (I have Plato’s political theory in mind, and Aristotles collection of constitutions) when the science of society might have seemed to have advanced further than the science of nature. But with Galileo and Newton, physics became successful beyond expectation, far surpassing all the other sciences; and since the time of Pasteur, the Galileo of biology, the biological sciences have been almost equally successful. But the social sciences do not as yet seem to have found their Galileo.”
To the whole world, I herewith state without hesitation or equivocation, that I can find not one whit of evidence to the effect that the social sciences have not now, finally, found their Galileo in the work of my late parents, my late brother, and in the work of my family which I continue.
That is an absurd claim unless it can be properly demonstrated.
However, by definition and by process, because the Adversarial Principle totally, absolutely, and perfectly excludes the work of my family, within the boundaries of the Adversarial Principle, no validity can ever be found to exist for the work of my family.
The fact that the work of my family cannot exist within the boundaries of the Adversarial Principle has, as I observe, been repeatedly and amply demonstrated in many of he comments posted to the Professor Jonathan Turley Blawg.
That which is perfectly impossible has a curious property:
That Which is Impossible Never Happens.
I am not defending the value of my family’s work within the boundaries of the Adversarial Principle because of the simple, and perfectly tragic, fact that the work of my family exists only absolutely and totally outside the boundaries of the Adversarial Principle.
The Prosecutor, “Did you stop tickling your purple-people-eating pet unicorn last Tuesday on Friday afternoon at 27:89:73 o’clock? Answer yes or no!”
The Defendant, ” ”
The Judge, to the Defendant, “You WILL answer yes or no!”
The Defendant, “Yes or no?”
The Jury, “Guilty as charged.”
The Judge, to the Defendant, “I sentence you to summary execution!”
In pursuit of peace, the Judge aims and fires his piece.
BANG! (DER KOPF IST KAPUT!)”
The Defendant now in peace, now in pieces…
ADVERSARIAL JUSTICE
(Purple-people-eating unicorns do not exist.)