The First Amendment is taking a lot of abuse these days from expanding government power sanctioned by those “small-government” conservative jurists appointed by small-government presidents and confirmed by recycling hordes of small-government senators.
It is questionable just how much of this small and freedom-loving government, as defined by these boys, we can stand.
Tuesday another landmark decision was handed down, pumping more steroids into Leviathan.
“The Supreme Court declared today, in a ruling affecting millions of government employees, that the Constitution does not always protect their free-speech rights for what they say on the job.
“In a 5-to-4 decision, the court held that public employees’ free-speech rights are protected when they speak out as citizens on matters of public concern, but not when they speak out in the course of their official duties.”
Justices Anthony Kennedy, Samuel Alito, John Roberts, Antonin Scalia and Clarence Thomas -- the “conservative” crowd -- constituted the majority. Dissenting were big-government Justices Ruth Bader Ginsburg, Stephen Breyer, John Paul Stevens and David Souter, the latter of whom wrote:
“Private and public interests in addressing official wrongdoing and threats to public health and safety can outweigh the government’s stake in the efficient implementation of policy, and when they do public employees who speak on these matters in the course of their duties should be eligible to claim First Amendment protection.”
Stevens, in a separate dissenting opinion, added that “‘The notion that there is a categorical difference between speaking as a citizen and speaking in the course of one’s employment is quite wrong.’ He said the majority ruling could have the ‘perverse’ effect of giving public employees an incentive to speak out publicly, as citizens, before talking frankly to their superiors.”
What Stevens didn’t add was that the Jeffersonian government so idealized by conservatives is busy cracking down on the right of any public employee in any capacity to tell the public what it so dearly needs to know.
Yet the same government that is stripping conscientious workers of their civic rights is, of course, forceful in asserting its own First Amendment guarantees. Journalist Helen Thomas, in her Watchdogs of Democracy (to be released June 20; thanks to Simon & Schuster for providing me an advance copy), notes the sad irony, for example, of Dick Cheney’s recent federal court victories over those who sued him over his energy task-force shenanigans, using the sound reasoning that “the government had a legal duty to produce documents regarding White House contact with business leaders and lobbyists.”
Concluded Thomas with equally sound reasoning: “In other words, Cheney argued, and the courts agreed, that the confidentiality of internal deliberations between the president and his advisors is constitutionally protected…. If a shield law is appropriate for the government, it is certainly appropriate for the press and the public” [my emphasis].
Amen -- but first, Lord, please deliver us from the further guardianship of small-government, freedom-loving conservatives.