Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
Last week I wrote an essay criticizing JonJayRay from STACLU for distorting the meaning of the Good News Employee Association v Hicks case. Now he has responded. Kind of. He doesn't really address my argument at all, he just repeats the same half-truths. But he starts with this little gem:
This blog is all about criticizing infractions of free speech and the only people who argue with me about what I write are normally my own readers. And they certainly don't always agree with me. However, some fat guy in Michigan has put up a post on Science Blogs criticizing a post I put up both here and on STACLU.
I do find it endlessly amusing that so many of my critics really do think that calling me fat somehow answers my arguments or lends them credibility. Now on to the substance, such as it is, of his reply:
His argument is fundamentally a legalistic one but maybe I should say a few words about it. He is talking about the case where some California Christians were forbidden from putting up on a noticeboard a flier containing such dreaded words as "natural family", "marriage" and "family values". I pointed out that forbidding these words seemed to be based on the view that they were hate speech directed at homosexuals.My critic says that the court ruling supporting the ban has nothing to do with hate speech. He says: "The issue in the case was the application of Pickering, which requires judges to apply a balancing test between free speech rights and the administrative needs of the employer
So the administrative needs of the employer required them to ban use of "natural family," "marriage" and "family values"! Pretty strange administrative needs! My post went to the heart of WHY the empoyer had such strange needs and I stand by my view that the need arose from a perception and treatment of the words as hate speech. The fact that the Christians were threatened with being fired over it certainly reinforces that impression.
Again, he just repeats the same nonsense he is regurgitating from the Worldnutdaily. The religious right is absolutely frantic to paint the ruling as outlawing specific phrases and that is simply false. The case did not outlaw those phrases, nor did it criminalize anything at all. It is a very narrow issue involving only whether an employer can decide what can and cannot be posted on a bulletin board in an office based on their desire to avoid office disruption.
As I said at the time the appeals court heard the case, I think the ruling is wrong. I think even with the balancing test, the court should have stood up for maximum freedom of speech, especially since the employer in this case was a government office. But there are valid criticisms of the ruling and invalid ones, and this guy is mindlessly repeating not only an invalid criticism but a blatantly dishonest one. No one in the case was "threatened with being fired", the only restriction was that they could not put up a flier on the bulletin board.
In fact, the plaintiffs in the case acknowledged that they were specifically told that they could broadcast the existence of their group in other ways and that they were entirely free to talk to their fellow employees about it in the office. Thus, the court said, this is little more than a time, place and manner restriction where both the liberty interest and the administrative interest are slight. On balance, they came down on the side of the employer (again, I think wrongly so).
The religious right is exaggerating this case beyond all proportion. They are claiming that the court said the employer could fire someone, or even face criminal charges, for using these few phrases because they constitute "hate speech". That is false on all three counts - the case had nothing to do with those specific phrases, it did not forbid anyone from using them, it had nothing to do with firing anyone and even less to do with any speech being made criminal. These are flat out lies.
Oh, and he does try to excuse away the irrelevant insult to me at the end:
I called my critic a "fat guy in Michigan" just for a stir. "Stirring the possum" is something of a habit we Australians have. But he did accuse me of "singing an absurd song" so maybe an improvement in manners on his part might get him more favourable mention. He is at least an intelligent critic and has an argument -- both of which are routinely missing from the emails I get from Leftists.
Sorry, I don't buy it. You did that because, as the rest of the post makes clear, you don't have a substantive argument to offer. Insults are all you have.
Comments
This is a post I attempted to make on JonJayRay's website. It was flagged as spam. Perhaps all comments are flagged that way, and that's the mechanism he uses to filter actual spam. Just in case, I also e-mailed it to him. I'll be interested to see if it gets posted over there.
*************
I read your earlier post by following the link you provided. Where, precisely, did you go to "the heart of WHY the empoyer had such strange needs"? I read that the issue arose during the same-sex marriage debate - but you failed to mention why that was relevant.
As a mid-level manager, I can easily understand why an employer might want to curtail political speech in the work environment. Having my employees bickering about their political opinions lowers productivity both by making it harder for them to cooperate with one another, and by the time it takes simply to have the argument. That would be a legitimate "administrative need." If you can show proof that the employer allowed pro-SSM postings while forbidding these, then I might agree with you. In the absence of such evidence, though, I'm forced to assume that you're just ticked off that someone who shares your values was forced to express themselves on their own time instead of their employers'.
********************
Posted by: BobApril | June 19, 2007 10:33 AM
BobApril: The Good News Association was responding to communications by a GLBT employees association which was already using the bulletin boards and internal email to publicize their activities. The issue was the use of one particular bulletin board, located next to the desk of a leader in the GLBT group.
So there were a lot of cross-issues in play, principally the basic fairness of starting to police internal communication only after the Christians got involved, but also whether or not posting on that one board was for the purpose of communication, or , rather, an act of provocation.
For me, the fact that the employer is the government is the decider here: If they provide internal means of communication, they should do so in the expectation that these things will be used in ways that make people unhappy. Free speech isn't always pretty.
Posted by: kehrsam | June 19, 2007 11:30 AM
I agree with kehrsam here. If it was a private employer, I would be on the side of the employer. The fact that this was a government employer and that the flyer posted was virtually identical in content and purpose as a flyer that was allowed is the key for me. I agree with jonjayray on the outcome of the case; the court got it wrong. But it's wrong for far more limited and narrow reasons than folks like him have been claiming. Their rhetoric on the case has been completely inaccurate and wildly exaggerated.
Posted by: Ed Brayton | June 19, 2007 11:56 AM
Kehrsam,
Much more informative, thank you. I too have a problem with letting one side (even the one I agree with) have their way, then closing it down with the other side joins in. It surprises me that the court would rule that way if this is the case.
However, the fact that the employer was the government is a non-issue for me. If anything, government employees should expect LESS freedom of speech while "on the clock" than other people. It is too easy for a non-employee (a client, customer, journalist, whatever) to be exposed to the political opinion (glancing at the bulletin board) and take it to be an OFFICIAL expression of support.
And of course, none of this explains or excuses JonJayRay's massive misrepresentation of the case. On that, I also note that my original comment is still not visible on his page...but then, neither is anyone else's.
Posted by: BobApril | June 19, 2007 12:03 PM
BobApril: I agree that government may well have a good reason for restricting controversial communication. I don't believe that the mere fact that religious messages travel over gov't-owned media equals establishment. But higher-ups should be sensitive to the possibility.
And there is no reason government cannot set protocols to control content over internal media, assuming such protocols are non-discriminatory. For instance, my sister-in-law works for the local VA hospital. She is highly restricted in the use of the internet, internal email system, and other forms of communication. Virtually all non work-related uses are banned. That is perfectly allowable.
The problem comes when the envelope is opened a bit. Once a forum has been opened, it is fair game. You can't allow notices of little league or bake sales without also allowing notices from the local NAMBLA chapter.
Some government offices restrict content to organizations which have a 503(c)(3) designation. To my best knowledge, this approach has not been tested in Court, but it is easy to imagine scenarios where it might be unfair.
Thanks for the discussion, and cheers!
Posted by: kehrsam | June 19, 2007 12:40 PM
Oh, no, this is a time honored method of argumentation:
Plato had smelly feet. And he was really, really gay. Seriously.
--Aristotle
Heraclitus needs to brush his teeth before he enters into dialectical debate with me again.
--Parminides
Socrates' momma so fat, when she sits around the agora she really sits around the agora.
--Gorgias
Know Thyself. Unless you're Aristophanes, in which case Fuck Thyself.
--Plato
Posted by: Wes | June 19, 2007 1:41 PM
Aww, you're not fat. You're always as beautiful as you feel, Ed.
Posted by: Brandon | June 19, 2007 2:39 PM
Was the bulletin board the only place where it was posted, or was it posted in other places but only objected too in the one location? I could see it making a difference, in that if they put it up on just the one bboard, it could be construed as being deliberately provocative. Not sure if it would be decisive, but something I would have to consider.
Posted by: W. Kevin Vicklund | June 19, 2007 2:49 PM
"Know Thyself. Unless you're Aristophanes, in which case Fuck Thyself.
--Plato"
I know he didn't really say it, but that's begging to be a poster, or at least a forum signature.
Posted by: Michael LoPrete | June 19, 2007 3:17 PM
If the guy is Australian, why does he have his balls in a bunch over the ACLU and U.S. court cases? I suppose he could be an expatriate Australian living in the States, but I can't imagine he wound up here through a work visa or anything -- frankly, he doesn't seem intelligent enough to hold the sort of job someone would move 12,000 miles for. He's the dumbest contributor STACLU has.
Posted by: kemibe | June 19, 2007 4:50 PM
Actually, IIRC, the case involved far more than the mere placement of a flyer on a bulletin board. The purpose of the "Christian" group was to advocate against the rights of GLBT people. There was not similar intent of the GLBT group (e.g., they didn't care what the heretics in this case did). More importantly, again IIRC, the two employees in question had been previously reprimanded for disruptive activity, particularly against GLBT employees (again, without any similar actions on the part of the GLBT group).
Whatever you think about the ruling, it is clear that AT NO TIME did the employer ban any specific words or phrases, nor did they prevent the communication of this group's formation on all fronts. They limited the means of this group in one way only. What the "Religious" right is complaining about is a fiction, pure and simple.
Posted by: CPT_Doom | June 19, 2007 7:02 PM
CPT_Doom wrote:
I think these are legally equivalent. One group advocates for expanding protections for gays, including anti-discrimination protections, gay marriage, and so forth. The other group advocated against those changes. Legally, they are exactly equivalent, two sides in an active and ongoing political controversy. If you're going to allow one group access, you have to allow both; that is the whole principle of an public forum (and I believe that such cases should be decided on the basis of the court's history of public forum rulings; Pickering should not apply to a government employer).
If that's the case, I must have missed. I don't recall seeing any mention of that in the ruling.
Posted by: Ed Brayton | June 19, 2007 7:50 PM
There it is again. I agree that the government has no right to censor public speech. But Ed, why do you believe that the government has a lesser right to control their workplace? For starters, they have all the same problems of any employer. They're subject to lawsuits for harassment and discrimination, they have to promote, reprimand and fire in accordance with union rules, and so on. In addition to all that, though they have an extra problem - to the public they serve, EVERY government employee speaks for the government in every word and action. In accepting employment by the government, you become subject to the Constitutional limits of what the government CAN'T do, because you are legally a representative of it. In effect, when you take the job, the Constitution stops protecting you from government interference, and starts protecting other citizens from YOU.
I excerpt from the Code of Ethics for Government Service, passed by the U.S. Congress in 1958:
If a government employee is on the clock, they have no private voice. Their supervisors, all the way up the chain, are legally required to enforce that standard. I fully agree that, having opened up a channel for the GLBT folks, the channel should have remained open for the Good News crew. In my opinion, though, neither one of them should have been using government resources in the first place.
Posted by: BobApril | June 19, 2007 10:02 PM
BobApril wrote:
I think this goes entirely too far. Their relationship to the public they serve is simply not an issue here; this was an internal work issue dealing only with an employee's actions within the office and how much authority his bosses have to regulate those actions. I make a distinction between what a government employer can do and what a private employer because the government is subject to constitutional restrictions that private employers are not.
Posted by: Ed Brayton | June 19, 2007 11:06 PM
If the guy is Australian, why does he have his balls in a bunch over the ACLU and U.S. court cases? I suppose he could be an expatriate Australian living in the States, but I can't imagine he wound up here through a work visa or anything -- frankly, he doesn't seem intelligent enough to hold the sort of job someone would move 12,000 miles for. He's the dumbest contributor STACLU has.
Is this the same John Ray who blogs at A Western Heart? Yikes!
Posted by: AV | June 20, 2007 12:40 AM
I do find it endlessly amusing that so many of my critics really do think that calling me fat somehow answers my arguments or lends them credibility.
If it is the same John Ray . . . ad hominems and vitriol as a substitute for argument is pretty much par for the course on the right wing of the Australian blogosphere.
Posted by: AV | June 20, 2007 12:58 AM
(is=are)
Posted by: AV | June 20, 2007 1:02 AM
Ed, you said:
I think these are legally equivalent. One group advocates for expanding protections for gays, including anti-discrimination protections, gay marriage, and so forth. The other group advocated against those changes
I cannot see how, in a workplace, you can possibly treat these as legally equivalent. One group is advocating for non-discrimination and non-harassment in the workplace, one group is insisting on retaining the right to continue to discrimination and harassment. How can the latter possibly be equlvalent to the former. Yes, the different treament is content-based; but so what? The (goverment) employer has an anti-harassment policy, and took the not unreasonable view that advocacy for the right to harass was sufficiently close to harassment to engage their policy. While the Court accepts GNEA's argument that enforcement of a policy is not in itself a sufficient interest to restrict speech rights, the employer must be entitled to protect itself from suits from employers who resign because their employer permits harassment by fellow employees. The existence, and enforcement, of an anti-harassment policy would be pretty much an essential component of a defence to such a claim.
It may be that my view is coloured by coming from a jurisdiction where employees do have rights against unfair and wrongful dismissal, of course.
As for your argument that government employees are entitled to less protection than employees of private organisations - I really cannot see why. Could you unpack this a little more? You are making a First Amendment argument that government employees are to be allowed latitude to harass their fellow employees in breach of employers' policy that private sector employees are not allowed; yet the Court rightly points out that First Amendment rights accrue to citizens qua citizens, not qua employees. Their right to use their employers' communication systems, on the other hand, accrues from and is limited by their employment status.
Posted by: Robin Levett | June 20, 2007 8:07 AM
Ed said:
I make a distinction between what a government employer can do and what a private employer because the government is subject to constitutional restrictions that private employers are not.
Yep, I make the same distinction...just in the opposite direction. Oh, well, I guess we'll disagree on that one - it's really a tangent on this post, anyway. See you on your next post.
Posted by: BobApril | June 20, 2007 8:09 AM
Robin Levett wrote:
If the harassment policy is so broad that it is triggered merely by another person advocating a political position that one doesn't like, it is entirely too broad. No one suggested any real harassment in this case. There is no evidence at all that those who put up the flier treated any fellow gay employee any differently than anyone else, targeted them for insult or bullying or anything else that could legitimately trigger a ban on harassment. They didn't put up a flier saying "Gays are horrible evil people and should burn in hell." There are things they could have done that could be considered harassment; none of those things were done. The group they formed was to advocate a position held by at least half the population; the government simply has no legitimate authority to say that one side of an ongoing public dispute gets to promote their idea and one side may not.
The other problem is that if your argument is correct and it IS harassment merely for them to advocate their political views in that manner, then the ruling clearly did not go far enough, nor did the administration. If it's harassment to do so, why stop with preventing them access to the bulletin board? The administration explicitly gave them permission to speak to others in the office about it, including in the break room, and to use their email accounts to send out notices. If it's harassment for them to do so by a bulletin board, why would it not be harassment to do so by those methods?
Posted by: Ed Brayton | June 20, 2007 11:54 AM
Ed, you said:
If the harassment policy is so broad that it is triggered merely by another person advocating a political position that one doesn't like, it is entirely too broad.
I didn't suggest that at all, unless you are going to argue that everything is political. It isn't a political position to say that your fellow-employee should be discriminated against, and may be harassed without fear of reprisal, because of his or her sexual orientation.
The difference between a flier for an organisation openly advocating workplace discrimination on grounds of sexual orientation, and a flier for the workplace chapter of the KKK openly advocating discrimination based upon race, is one of degree and history, not kind.
...the government simply has no legitimate authority to say that one side of an ongoing public dispute gets to promote their idea and one side may not.
This is where I think you don't get it. This isn't an organisation campaigning outside the workplace for political change, with the government preventing legitimate expression of that aspiration. It is an employee organisation - that's what the "E" in GNEA stands for - working within the workplace for discrimination against other employees. Even if half the employees (and they are the relevant people) support that discrimination - so what? They don't get to force the employer to treat one section of its workforce differently to another. This isn't an instance of the government doing anything - it's the employer, which happens to be the government, acting properly as an employer.
The difference between use of the bulletin board and discussions in the rest room and individual emails is an issue of endorsement.
I would argue also that you are, with respect, inconsistent in this. You posted a few days ago about the Tennessee teacher who was disciplined for pulling up a pupil who (in break time) used gay as a negative description. Why was the pupil wrong to do so, and why was the teacher right to pull her up for it? Why is the government (in your terms) permitted to intervene in that case, but not permitted to do so here?
My answer is a simple one. The teacher has a legimitate interest in teaching his pupils basic respect for their fellow pupils, whatever their race, religion gender or sexual orientation (etc). The employer has a legitimate interest in looking to set an example to its workforce to have the same respect, and apparently endorsing a workplace organisation that seeks to oppose that policy runs counter to that.
Posted by: Robin Levett | June 20, 2007 1:13 PM
Robin Levett wrote:
You keep mixing discrimination and harassment; that is unjustified. No one in this situation took the position that it is okay to harass anyone. No court would ever say that an employee who harasses another employee must be allowed to do so. Any employer can fire an employee for harassing another employee. But there simply was no harassment here. Of course it's a political position to say that the government should not enforce laws against discrimination on the basis of sexual orientation. It's a position taken by at least half the population and it is an active political issue at all levels of government all over the country. What could it possibly be if it's not a political position? It may be a wrong or unjustified political position, but that doesn't make it magically not a political position. The advocacy of that and any other political position is absolutely protected by the first amendment.
But they do get to advocate that position.
Nonsense. The bulletin board was available for a wide variety of fliers on a wide variety of subjects, put up by employees. The only one they censored was this one. How is a flier put up by an employee on a board open to fliers from employees any more endorsed by the city than that same employee handing it out by hand to his fellow employees? And why - again - would it be "harassment" to put the flier up on the bulletin board but not to hand the flier out one at a time? If your position is to be taken seriously, then there should also be a ban on advocating that position in conversation, or handing out any literature promoting it as well. But the city explicitly gave them permission to do those things. That's why the position that this is "harassment" is just plain nonsense. Even the city did not allege that.
You really don't see the difference? The teacher did not punish the student, he tried to show her why he thought she was wrong. That is not at all the same thing as forbidding them to say something or punishing them for it.
Posted by: Ed Brayton | June 20, 2007 1:39 PM
Ed:
Of course it's a political position to say that the government should not enforce laws against discrimination on the basis of sexual orientation.
I entirely agree. It's totally irrelevant to the situation, but I entirely agree.
The situation I'm talking about is one where a group of employees are trying to persuade their employer to treat a subset of their employees, defined by sexual orientation, differently; that is, I'm talking about GNEA v Hicks. Until you address the fact that government employees First Amendment rights of speech to government employees are no greater than non-government employees' First Amendment rights of speech to government employees - hence that there is no legitimate distinction between government and private sector employees speech rights as employees - the fact that the government is the employer is a red herring.
You keep mixing discrimination and harassment; that is unjustified. No one in this situation took the position that it is okay to harass anyone.
The action was taken by the employer under the non-harassment policy; they took the view that the flier tended towards harassment. The Court took the view that while the harassment involved was slight, there is no obligation on the employer to wait until the problem has become seriously disruptive before taking action.
The District Court quoted Hicks as referring to the incident as involving "flyers [which] were placed in public view
which contained statements of a homophobic nature and were
determined to promote sexual orientation based harassment".
How is a flier put up by an employee on a board open to fliers from employees any more endorsed by the city than that same employee handing it out by hand to his fellow employees?
You really don't see the difference?
By the way, the city gave permission for the distribution of the flier (and email notices) provided the anti-homosexual language was removed. That is, I would suggest, a pretty significant difference.
And no, I don't see the difference between this case and the Henry case in Tennessee in the relevant respects. The teacher, a government employee, sought to chill the student's use of the relevant speech; the city's employees sought to chill other employees' use of the relevant speech. Nobody was punished in either event; in fact the Court makes a point of the fact that "no adverse employment action was taken" in the GNEA case.
Posted by: Robin Levett | June 20, 2007 5:17 PM