Author Archive | John Remensperger

@NatSecWonk: Free Speech and the Twitter Account that Sank a National Security Adviser

Jofi-JosephWhen a White House insider takes to Twitter, he loses his job – but not his First Amendment rights.

For two years, Jofi Joseph, the director of nuclear nonproliferation issues on the White House National Security Council staff, tweeted snarky remarks about politicians, reporters and colleagues using the anonymous Twitter handle @NatSecWonk. Last Tuesday evening, The Daily Beast reported that the White House, having learned of Joseph’s activities, relieved him of his duties.

Within an hour of the article’s publication, Twitter users flocked online to question the White House’s response. Many were critical, questioning whether Joseph’s firing was a violation of his First Amendment rights.

As a former government employee and mass communication graduate, my immediate reaction was that the accusations in these tweets were unfounded and incorrect. A knowledgeable government employee knows that he or she can’t speak negatively and publicly about his or her employer without repercussions. But taking a step back, it’s clear that the ramifications of punishing government employee speech are significant and that firing a government employee is not a simple solution to the problems an outspoken employee creates. What about whistleblowers? What about the importance of political speech? Did Joseph give up his right to voice his opinions on important public topics when he joined the Obama Administration? And how does Joseph’s situation compare to the existing landscape of government employee speech cases?

Modern government employee speech law in the United States traces its roots to Pickering v. Board of Education of Township High School District 205, Will County, Illinois (1968). At issue in Pickering was the firing of an Illinois school teacher whose comments criticizing the Township Board of Education were published in a letter to the editor of a local newspaper. Marvin L. Pickering criticized the board’s management of bond funds and accused the board of silencing teachers’ opinions about a bond proposal. In a board of education hearing, the board found that many of Pickering’s accusations were false and damaged board members’ reputations. Pickering was fired. He appealed the board’s decision to the Circuit Court of Will County, Illinois, which supported the school district. This case was appealed to the U.S. Supreme Court, where the Court held that while public employees do have rights as citizens to speak about issues of public concern, this right must be balanced against the interest of the State, as an employer, in efficiently providing public services. Further, regarding the falseness of his claims, the Court held that Pickering’s comments would have to have been knowingly or recklessly false in order for him to be punished, under the then-recently decided New York Times v. Sullivan (1964) case, which established the actual malice standard for public officials in defamation cases. For these reasons, the Court ruled in Pickering’s favor and overturned the lower court’s ruling.

In two subsequent cases, Connick v. Myers (1983) and San Diego v. Roe (2004), the Court clarified that a public employee’s speech about private issues was less protected than speech about public issues. As such, the Court held that the balancing outlined in Pickering need only be applied after establishing that the speech in question was about issues of public concern. Most recently, in Garcetti v. Caballos (2006)the Court held that statements made as part of an employee’s official duties, such as in memos, meetings, or public briefings, do not receive First Amendment protection against disciplinary action. Rather, the Court held that the First Amendment protects only speech that the employee makes as a private citizen.

In applying these decisions to Joseph’s situation, it is first necessary to see if his tweets were about matters of public concern, as established under the Court’s decisions in Connick and San Diego. If so, the Pickering balancing test, in which the government interest in restricting or punishing speech is weighed against the employee’s right to speak, is applied.

Though Joseph’s Twitter account is no longer active, copies of his tweets are still available online. The tweets largely fall into two categories.

1) Comments or criticisms about public officials or policy

@NatSecWonk 14 Sep Peeps, we need more backstory on who was with Kerry during these three long days of negotiations. “Arms control experts” doesn’t cut it. 

@NatSecWonk 15 Sep @ EricDKoch Look, Issa is an ass, but he’s on to something here with the @ HillaryClinton whitewash of accountability for Benghazi.

2) Snarky remarks about journalists, White House staffers and policy makers

@NatSecWonk 18 Jul 12 Was Huma Abedin wearing beer goggles the night she met Anthony Wiener? Almost as bad a pairing as Samantha Powers and Cass Sunstein ….

@NatSecWonk 25 Jan 12 If Gingrich wins the nomination, all those GOP foreign policy weenies who jumped on Romney’s bandwagon, er policy teams, will be so screwed!

In the first examples above, Joseph implies that the Obama administration should release more information about John Kerry’s negotiations around the elimination of Syria’s chemical weapons program. Joseph also states that Hillary Clinton deserves some blame for the State Department’s handling of the 2012 crisis in Benghazi, in which U.S. ambassador Christopher Stevens was killed. These issues are issues of public concern and subject to the balancing outlined in Pickering. However, the tweets in the latter group do not appear to relate directly to issues of public concern and, in the case of public employees, can result in disciplinary action.

Writing for the majority in Pickering, Justice Marshall stated that the speech of teachers, informed by their expertise in the field, allows them to contribute a unique and important perspective to debate over public school funding. Did Joseph’s knowledge of national security issues provide him a similarly unique perspective? Tweets from the @NatSecWonk account don’t suggest that. For example, his statement about Benghazi echoes what many politicians and members of the media already were saying. Did Joseph knowingly or recklessly make false statements? It’s not clear that he made false statements at all. It is immediately clear that his statements were rude and in bad taste, but they are, for the most part, statements of opinion and not provable as fact. Notably, it also has been reported that Joseph did not use the account to disseminate classified information.

It is also important to note that Garcetti is not relevant here. No one would argue that Joseph’s tweets as @NatSecWonk were made as part of his job duties.

Other commentators have suggested that the content of Joseph’s speech doesn’t matter because he was an “at-will employee” and can be fired for any reason. Thankfully, this issue is not complicated. Yes, many government employees, including most in state governments such as North Carolina, are “at-will,” meaning they are not protected by the termination processes or requirements for a showing of just cause that often are included in collective bargaining agreements. At-will employees can be dismissed at any time for legal reasons, but still cannot be dismissed for illegal reasons, such as exercising their right to free speech. The UNC School of Government offers an explanation of “At-Will Employment” including a list of federal protections for government employees. These protections make it illegal to dismiss at-will employees based on factors such as race, religion and the results of unreasonable searches.

Because Joseph’s status as an at-will employee does not diminish his constitutional protections, we can return to the content of his speech. Do the issues raised by Joseph outweigh the needs of the White House to do its business? I would argue that they do not. After reading many of the @NatSecWonk tweets, it is clear that Joseph has palpable disrespect for his coworkers, which would likely impede any working relationship. His comments on issues of public concern did not add much to the existing conversations on issues of interest to the White House. There might be an occasional tweet about his opinion on the administration’s handling of the Benghazi crisis that would outweigh the needs of the White House, but these are few and far between.

So where does that leave us? And what does that mean for Joseph and the future of government employee speech? In my analysis, most of Joseph’s tweets contain content for which he can clearly be punished. There are a few things that are protected by the First Amendment. Does that small amount of speech outweigh the mass of insubordinate content? Probably not, but as David Ardia, co-director of the UNC Center for Media Law and Policy, recently observed, “public employee speech doctrine is very murky.”

John Remensperger is a digital strategist at the UNC Center for Media Law and Policy. Before moving to North Carolina from California, John spent five years managing municipal arts and recreation programs. John’s research interests include the use of new media in government and political communication, and in the promotion of civic participation.

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UNC Grad to Head Open Government Coalition

A recent graduate of UNC’s dual-degree program in media law, Jonathan Jones (M.A., J.D. 2011), has been named director of the North Carolina Open Government Coalition and Sunshine Center at Elon University.  He also will teach courses in Elon’s School of Communications.

Currently an assistant district attorney for Durham County in North Carolina, Jones will begin his new job in mid-August.  In his new job, Jones will work with the coalition’s board to organize the state’s annual Sunshine Day, advise citizens about open government issues, produce webinars or workshops around the state, handle communication for the coalition, and find new ways to inform North Carolina citizens of the value and processes of open government in the state.

Jones previously worked for the NCOGC as a legal intern in summer 2010.  He researched business models for a regional nonprofit investigative reporting center.

In a press release, Jones said: “I’m ecstatic to pick up on the tremendous work coalition members have already been doing to educate record holders and record seekers about our state’s open government laws.  Transparency in government is the cornerstone of democracy. It instills public trust and gives citizens faith in their government. I look forward to helping sunshine find its way into communities across our state.”

At UNC Jones served as editor-in-chief of the First Amendment Law Review and worked on UNC’s Innocence Project.  He has published in the First Amendment Law Review, News Media & The Law, and “Sunshine, Inc.: The Basics of Covering Business Organizations” produced by the Reporters Committee for Freedom of the Press.

He earned an undergraduate degree in journalism from UNC and worked for six years as a reporter at newspapers in Maryland and Virginia and at the News & Record in Greensboro.

The North Carolina Open Government Coalition unites organizations interested in ensuring and enhancing the public’s access to government activity, records, and meetings. The nonpartisan coalition educates people about their rights, supports their efforts to gain access, and advocates the principles and benefits of open government. The Sunshine Center is the educational arm of the NCOGC and focuses on outreach efforts to inform citizens about the importance of government openness.

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Center Staffer’s Book on Shield Laws Published

shield-lawsUNC Center for Media Law and Policy Research Fellow Dean Smith is the author of a new book, “A Theory of Shield Laws: Journalists, Their Sources, and Popular Constitutionalism,” published in June by LFB Scholarly Publishing.

In his book, Smith shows how the debate over confidential sources evolved over the 115-year history of statutory shield laws, and he examines how First Amendment values drove the debate in both the courts and in legislative bodies.  He corrects some long-standing errors in the historical record.

The book also is a textual analysis of enacted and proposed shield laws and cases that tracks the evolution in thinking on the journalist-privilege issue. Finally, it is a reappraisal of Branzburg v. Hayes that suggests a fresh way of seeing that familiar Supreme Court case: as neither a beginning nor an end, but as a midway point in a conversation the courts are having with the American people.

His use of the emerging concept of popular constitutionalism as a theoretical framework led Smith to new and important insights about this area of law, including the fact that legislative and judicial decision-making were intimately intertwined. Drawing on contemporary legal scholarship, Smith used the reporter’s privilege issue to test constitutional-law scholar Michael Gerhardt’s theory of “non-judicial precedents,” and he has shown how, true to the theory, people acting outside the courts help give meaning to constitutional principles such as freedom of the press over time.

Smith earned his Ph.D. from the UNC School of Journalism and Mass Communication in 2012.  He has presented award-winning papers at academic conferences and published in scholarly journals.  Smith also has written two white papers for the media law center.  The first paper summarized the findings of a center-sponsored conference on how to meet the information needs of communities. The second report described the benefits of state public affairs networks (SPAN systems) that cover state government.

Smith spent the past academic year teaching media law and newswriting at N.C. State University and High Point University. This fall he will begin work as an assistant professor at High Point University.

Before coming to UNC, Smith worked for The Charlotte Observer (1990-2004) and The (Raleigh) News & Observer (2004-2006) as a copy editor, reporter, and editor.

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Students Presenting at AEJMC Conference in August

Nearly 25 percent of the media law and policy research papers accepted for presentation at the annual convention of the Association for Education in Journalism and Mass Communication (AEJMC) were written by UNC students.

Five students had six papers accepted for presentation in the Law and Policy Division at the AEJMC convention to be held in August in Washington, D.C.  All paper submissions were blind-reviewed in competition with both student and faculty-authored papers.

No other university had as many as six papers accepted in the Law and Policy Division.

These are the students and the titles of their papers:

  • Jesse Abdenour (J-School Ph.D. student):  “Documenting Fair Use: Has the Statement of Best Practices Loosened the Fair Use Reins for Documentary Filmmakers?”
  • Kevin Delaney (M.A./J.D. student): “The State of Indecency Law: A Positive and Normative Evaluation of the Fox Cases”
  • Karen McIntyre (J-School Ph.D. student): “Droned Journalism: Using Unmanned Aircraft to Gather News and When Such Use Might Invade Privacy”
  • Hysosun Kim (J-School Ph.D. student):  “New Media?  New Guidelines?  FDA Regulation of Online DTC Prescription Drug Promotion”
  • Elizabeth Woolery (J-School Ph.D. student):  “The Press, the Public, and Capital Punishment: California First Amendment Coalition and the Development of a First Amendment Right to Witness Executions”
  • Elizabeth Woolery (J-School Ph.D. student):  “When (News)gathering Isn’t Enough:  The Right to Gather Information in Public Places”

As the titles reflect, these papers present legal research on some of the most pressing and interesting legal and constitutional issues in today’s complex and evolving media environment.

Congratulations, young legal scholars!

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UNC Students Presenting Research at AEJMC Southeast Colloquium

UNC School of Journalism and Mass Communication graduate students will present 13 research papers at the AEJMC Southeast Colloquium in Tampa this week. Ph.D. student Liz Woolery, who works in our media law center, will present two papers, one of which won third place in the Law and Policy Division. Both of Liz’s papers are about the rights of journalists and others to gather news.

For this conference, papers go through a process of blind review, and then the best papers are selected to be presented at the conference. Faculty and student authors compete against one another.

This will be the first academic conference for most of the students, but they’re ready. They have polished their papers and rehearsed their presentations.

 

Accepted Law and Policy Division papers include:

“Documenting Fair Use: Has the Statement of Best Practices Loosened the Fair Use Reins for Documentary Filmmakers?” — Jesse Abdenour, first-year doctoral student

“The Advertising Regulation ‘Green Zone’: Analyzing Parallels of Commercial Speech Jurisprudence As It Might Apply to the Growing Issue of Medicinal Marijuana Advertising, Using the Denver Advertising Ban as an

Illustrative Example” — Joseph Cabosky, first-year doctoral student

“Hazelwood’s Footnote Seven” — Ryan N. Comfort, first-year master’s student

“Consumer Protection Challenges on the Social Web: How the FTC Regulates Consumer-Generated Media as Endorsements and Testimonials in Advertising” — Emily A. Graban, first-year master’s student

“Abortion Informed Consent Laws: How Have Courts Considered First Amendment Challenges?” — Jaya Mathur, first-year master’s student

“How the FTC Has Enforced Its Deception Jurisdiction in Cases Involving an Ill, and Therefore, Vulnerable Audience” — Emery Rogers, first-year master’s student

“A Decade of True Threats Decisions Since Virginia v. Black: The Digital Age Demands Supreme Court Attention to True Threats Definition and Doctrine” — Lynn Marshele Waddell, first-year master’s student

“The Press, the Public, and Capital Punishment: California First Amendment Coalition and the Development of a First Amendment Right to Witness Executions” — Elizabeth Woolery, second-year doctoral student

“When News(Gathering) Isn’t Enough: The Right to Gather Information in Public Places” — Elizabeth Woolery, second-year doctoral student

 

Accepted Newspaper and Online Division papers include:

“Three Days a Week: Has a New Production Cycle Altered The Times-Picayune’s News Coverage?” — David Bockino, first-year doctoral student

 

Accepted Open Division papers include:

“The Creepiness Factor: Explaining Conflicting Audience Attitudes toward Tailored Media Content” — Lisa Barnard, second-year doctoral student

“What Motivates People to Pass on Anti-brand Rumors Online?” — Hyosun Kim, second-year doctoral student

“What Sports Journalists Need to Know: Four Areas of Student-athlete Privacy Invasion” — Sada Reed, first-year doctoral student

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