Archive | First Amendment

Drones, Drones, Everywhere a Drone: Is North Carolina Ready for Unmanned Aircraft Systems?

By on February 10, 2014 in First Amendment, Journalism

Drones in North Carolina

It seems everyone has been talking about drones lately. Journalists, emergency management officials, police officers, privacy advocates, and even farmers have all shared their two cents about these “flying robots.” Now the North Carolina General Assembly has joined the discussion. Late last month, a legislative committee convened to discuss the future of unmanned aircraft systems/vehicles (UAS/UAV) in the state. “Unmanned aircraft systems” is the committee’s preferred term, rather than “drones.” The House committee, co-chaired by Representatives John Torbett (R) and Michael Setzer (R), was formed to study safety and privacy issues raised by unmanned aircraft systems. The committee also will study possible commercial and governmental uses of UAS and the potential economic benefits of UAS in the state.

At the Jan. 21 meeting, the committee heard from several speakers involved in the state’s study of UAS, including the state’s chief information officer, the director of NexGen Air Transportation at North Carolina State University, and representatives from the legislature’s Research Division. The committee did not reach any conclusions about the future of UAS in North Carolina and expects to meet up to three more times before presenting final recommendations during the 2014 legislative session. Those recommendations are due by April 25. What the committee is tasked with deciding before making those recommendations is relatively straightforward:

  • Is there a future for UAS in North Carolina?
  • Who will make use of UAS? Businesses? Government agencies? Civilians?
  • What regulations for UAS must be considered?
  • How can the state address privacy concerns raised by the use of UAS?

North Carolina is not alone in thinking about these questions. According to the National Conference of State Legislatures, 43 states introduced 130 bills and resolutions on UAS in 2013 alone. By the close of the year, 13 states had enacted laws, and 11 had adopted resolutions. In July, North Carolina joined those ranks when it enacted the Current Operations and Capital Improvements Appropriations Act of 2013.

State Regulation in North Carolina
Buried deep within the appropriations law is Section 7.16, the state’s first major effort to regulate Unmanned Aircraft Systems. Specifically, this section addresses how government agencies may go about procuring an unmanned aircraft. Section 7.16 effectively puts a moratorium on state or local government acquisition or operation of UAS until July 1, 2015, unless the state’s Chief Information Officer (CIO) approves such a request. The job of approving or denying requests for drones might seem out of the purview of a CIO. The CIO is housed within the state’s Office of Information and Technology Services, an office whose function is to deliver “the best in IT service and support.” In turn, the state CIO is granted “statewide authority over IT project approval and oversight, IT procurement, security, and information technology planning and budgeting.” At some point, someone felt that drone approval fit within that job description, and so approval for drones must now go through State CIO Chris Estes.

The state law further outlines the approval process a state agency must use to obtain and operate an unmanned aircraft vehicle. First, the agency must seek approval from Estes. Second, if Estes approves the request, the authorization will be reported to the Joint Legislative Oversight Committee on Information Technology and the Fiscal Research Division. At this point, planning for the drone can move forward, with Estes working alongside the director of the Aviation Division and the CIO for the Department of Transportation. Finally, State CIO Estes must provide “a proposal for implementation of the [UAS] program” to the legislative oversight committee by March 1, 2014.

Federal Aviation Administration Regulation
The N.C. House Committee on Unmanned Aircraft Systems has been tasked with finding out as much as it can about the potential for unmanned aircraft systems in North Carolina. But the state isn’t the only player here. As the committee heard at its January meeting, the Federal Aviation Administration will have a huge role in determining whether there is a future for UAS in the state and elsewhere, and what that future looks like. With the passage of the FAA Air Transportation Modernization and Safety Improvement Act in 2012, the FAA has a mandate to roadmap the future of UAS in the United States. Specifically, the FAA is charged with providing “for the safe integration of civil unmanned aircraft systems into the national airspace system” by September 2015. Further, the FAA needs to identify operational and certification requirements for operation of UAS by Dec. 31 of that year.

The FAA Modernization and Reform Act also mandated that the agency identify six “test ranges” at which its program for integration of UAS into the national airspace could begin. Twenty-five organizations across the country submitted proposals to be selected as one of the six. On Dec. 31, 2013, the FAA identified the operators of those six test sites as the University of Alaska, the State of Nevada, Griffiss International Airport (in Rome, N.Y.), the North Dakota Department of Commerce, Texas A&M University – Corpus Christi, and Virginia Polytechnic Institute and State University (Virginia Tech). Testing at those sites can continue until Feb. 13, 2017.

FAA-selected-uas-test-site-operators-large

Until testing at these sites is completed, many UAS flights are effectively grounded due to FAA certification requirements. The FAA approval process requires UAS operators to obtain two certifications, an Airworthiness Certificate and a Certificate of Waiver or Authorization (COA). The Airworthiness Certificate is used “to ensure that an aircraft design complies with the appropriate safety standards in the applicable airworthiness regulations.” As of now, standard airworthiness certificates are not being issued for unmanned aircraft systems; instead, the FAA is only issuing “experimental” certificates for UAS. The second certification, the COA, is issued after the FAA completes a “comprehensive operational and technical review.” Additionally, a COA can impose provisions or limitations on the use of the aircraft. Unfortunately for UAS operators, the approval process for both certifications can be time-consuming, taking up to a year, according to the FAA. Finally, it appears that the FAA has put the brakes on commercial UAS certifications; right now the agency is only permitting a limited number of experimental certifications. According to a FAA spokesperson, the FAA is in the process of “evaluating many potential uses of UAS,” however, “commercial operation of such aircraft is not yet allowed.”

Government, Civilian, and Commercial UAS
The FAA has been marching forward with its plan for unmanned aircraft systems regulation and experimentation. But while the FAA crafts regulations, states are still wondering what the future of UAS looks like for them. At the Jan. 21 committee meeting, members of the General Assembly heard from Kyle Snyder, director of the NextGen Air Transportation Center, housed at the Institute of Transportation Research and Education at North Carolina State University. Snyder offered the committee an overview of UAS, including what they are, what they are used for, and what the economic impact of UAS could be. On that last topic, Snyder cited a report from the Association for Unmanned Vehicle Systems International (AUVSI) that suggested UAS-based industry could create roughly 7,500 jobs in North Carolina by 2017. Already, though, Snyder’s work has seen some of the potential for UAS in the state, mainly in agriculture, where UAS could help farmers capture images to learn about their crops’ health and potential yield.

In addition to famers, other industries and professionals have expressed interest in UAS. Among them is the emergency management field, where officials could use UAS to collect images that show the scope of devastation after an earthquake or hurricane, for example. Law enforcement agencies also are interested in drones for a variety of purposes, including monitoring U.S. borders, tracking criminals or missing persons, and generating heat maps, which can be used to identify marijuana grow houses. And of course, some businesses are planning for more creative uses of UAS:

Of particular interest to those of us in the media law and policy world is the potential for “drone journalism.” Several organizations and universities, including the University of Nebraska-Lincoln and the University of Missouri, have started drone journalism research labs to explore the possible uses for UAS in news reporting. Around the world, UAS have been used to report on events such as Nebraska’s 2012 drought, a building demolition in Florida (during which the drone and news crew were attacked by a swarm of bees; the swarm became increasingly agitated as the drone’s rotors “whacked” the bees), political upheaval and police brutality in Turkey (the citizen journalist’s drone was ultimately shot down by police in Gezi Park), and a fire in New South Wales, Australia. Also, the British Broadcasting Corporation recently acquired an unmanned aircraft, named the “hexacopter.” According to BBC correspondent Richard Westcott, the hexacopter records images better than other image-capturing tools, including a helicopter or a steadicam. Given the already widespread use of UAS in news reporting, it certainly appears drones are going to be part of the future of journalism. But journalism, as with other industries interested in UAS, must wait until the FAA has completed experimental flights at the six test ranges, identified certification and operation requirements, and finalized a roadmap for the integration of commercial and civilian UAS into the national airspace.

Privacy Concerns Pave the Way
That roadmap may prove to be bumpy. As the FAA and other organizations involved in UAS have learned, civilian and commercial drone use has prompted concern about expectations of privacy. Legislators must consider whether the measures that currently are in place to protect an individual’s right to privacy are sufficient. Lawmakers also will be faced with the question of how they can plan for the future of UAS and ensure that the surveillance capabilities of these high-tech “flying robots” won’t be abused.

As the N.C. House Committee heard last month, any discussion or planning for civilian, commercial, or governmental UAS use must address these privacy concerns. To some extent, existing state law already speaks to some of those concerns. Susan Sitze, with the General Assembly’s Research Division, provided an overview of several existing state laws relevant to UAS use, including regulations on law enforcement surveillance and laws on general electronic surveillance. Already, North Carolina has criminal penalties for “secret peeping” and the “interception of oral transmissions.”

Law enforcement use of drones would raise a separate set of legal issues, including concerns about Fourth Amendment violations. Currently, many local, state, and federal agencies already have the tools for distance observation and surveillance, such as helicopters, traffic cameras, CCTV cameras, and satellites. But UAS can be cheaper, more flexible, more efficient, produce higher quality images, and respond more quickly than those surveillance tools. Some existing state laws, such as Article 16 of the N.C. General Statutes, addresses broader issues related to law enforcement surveillance. For example, Section 15A-290 details the circumstances under which permission may be granted for electronic surveillance; the circumstances currently are limited to drug trafficking and other violations of drug laws.

Finally, there is the issue of civil liability. North Carolina does recognize several privacy torts, including invasion of privacy by intrusion into one’s seclusion or solitude. The “intrusion tort” was recognized for the first time in 1996 in Miller v. Brooks, 123 N.C. App. 20 (1996). The Miller court relied on the Restatement (second) of Torts’ § 652B definition of intrusion: “One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.” This three-part definition, involving intrusion into solitude or seclusion that is highly offensive to a reasonable person, continues to be the core of the state’s intrusion tort.

How state laws on civil liability, law enforcement use of surveillance, and general electronic surveillance will fare in the age of UAS is unclear. Perhaps these protections will be sufficient. But maybe they won’t be, and if that’s the case, individual states may become the leaders in protecting privacy. Already the California Assembly has passed a bill restricting law enforcement use of UAS and data collected by UAS. The measure will now move to the California Senate for a vote. It is up to this N.C. House Committee (and more broadly, the state General Assembly) to decide how, if at all, North Carolina will wade into this great UAS experiment.

The Future for UAS in North Carolina
As the House Committee on Unmanned Aircraft Systems debates the future of unmanned aircraft systems in the state, there is one thing they will be sure to keep in mind: How greatly North Carolina cherishes its connection to the birth of the aviation industry. It was here on the beaches of Kitty Hawk in December 1903 that Wilbur and Orville Wright took their “flying machine” to the skies for 59 seconds and 852 feet, securing their legacies in aviation history. After completing the flight, the brothers walked four miles to the nearest weather station to telegraph their father, telling him to share the good news with the press. The two brothers had just made “the first free, controlled, and sustained flights in a power-driving, heavier-than-air machine” — and the world needed to know.

Wright_Bros_Telegram

As the first meeting of the House Committee on Unmanned Aircraft Systems concluded, committee co-chair Rep. John Torbett offered a few parting words, including this observation: “How appropriate that we look at the next gen of aviation in the state where aviation, manned flight was invented.” How appropriate indeed.

The House Committee on Unmanned Aircraft Systems will hold its second meeting on Monday, February 17 at 1 p.m. in Room 544 of the Legislative Office Building.

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A UNC Student’s Summer Experience at the Chilling Effects Clearinghouse, a Project of the Berkman Center for Internet and Society

By on January 14, 2014 in Copyright, First Amendment, Internet

Berkman Center LogoLet me start by saying that I really like information. Numbers, lists, facts, data, trivia. I like them all. I’m an information junkie. I also happen to love the First Amendment. Given this, it’s not surprising that I was so excited to spend this past summer interning with the Chilling Effects Clearinghouse at the Berkman Center for Internet & Society. Chilling Effects collects threats to free expression online, mostly in the form of DMCA take-down notices and similar intellectual property infringement claims, although Chilling Effects receives notices of other threats to free speech as well. All of that information is compiled into a searchable database. Being able to work with Chilling Effects, to explore this database, and to see “under the hood” was a great way to combine my interest in data with my passion for the First Amendment.

The summer was jumpstarted with a joint project involving myself and the two other Chilling Effects interns. Our task was to track down questionable trademark infringement claims in the database. We sorted through hundreds of these claims, looking to see if the people who filed them had concerns beyond trademark infringement — for example, someone whose real issue might be closer to a defamation claim than a trademark claim, but the latter might more quickly and effectively take down the content in question, since defamation claims can be costly to pursue and difficult to win. In other words, we scoured the database looking at potentially fraudulent trademark infringement claims that were being used to stifle free expression online. Once we wrapped up our search we worked with Jeff Hermes at the Digital Media Law Project to turn our findings into content for a presentation he was giving. One of the best parts of summer at the Berkman Center was a project like this one because I got to work with the other interns, all of whom were passionate, curious, and eager to spend the summer researching and working on a variety of Berkman projects.

On top of working with these great people, interns attended weekly presentations by leaders in the technology and policy fields. One week we got to hear from NYU privacy scholar Helen Nissenbaum, who spoke about transparency and privacy issues in accessing online court records. Earlier in the summer many of us attended a book launch for ReWire: Digital Cosmopolitans in the Age of Connection by Ethan Zuckerman of the MIT Center for Civic Media. But perhaps the most fun “intern hour” was an interactive demonstration of Google Glass. We might have looked ridiculous, but we loved being among the first to check out this new wearable computing technology.

The summer flew by. When news broke about the NSA’s PRISM program, I started reading everything I could about the issue and turned my research into a blog post featuring a timeline of Edward Snowden’s leaks and related news about the program. The best part about the blogging for Chilling Effects was that I got to use the Chilling Effects database to add color, facts, and figures to the stories that were already out there. For example, when Twitter released it’s annual Transparency Report in July, I combined their reported data with information stored in the Chilling Effects database. By layering the Chilling Effects’ data on top of Twitter’s, it was easy to start to see the bigger picture for how Twitter handles attempts by countries to censor tweets or account holders.

My summer internship at the Berkman Center gave me the opportunity to work with an area of the law that I am passionate about and introduced me to dozens of new friends and peers who are equally excited about the future of technology, law, and policy. It was by far the most exciting and memorable summer I’ve had and it was an honor to work with some of the world’s leading tech and policy thinkers. Summer 2014 Berkman Center internship applications just opened up and are being accepted until February 16.  If you’re interested applying you can find more information on the Center’s Internship page here.

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Free Speech Assumptions and the Case of Netflix

By on December 13, 2013 in First Amendment, Internet, Journalism
From left to right: Haben Girma, Harvard Law graduate; Elizabeth Ekstrand, daughter of the author; Victoria Ekstrand, UNC asst. professor; and Katie Savage, president of Advocates for Carolina.

From left to right: Haben Girma, Harvard Law graduate; Elizabeth Ekstrand, daughter of the author; Victoria Ekstrand, UNC asst. professor; and Katie Savage, president of Advocates for Carolina.

There are two (among many) huge assumptions we make when we speak of a right to free speech or free expression.

The first assumption is that such speech can actually be formed.

The second is that such speech will be heard.

For the disabled, neither assumption is a given.  The disabled who can speak are often not heard. Their voices are either lost in a crowded marketplace focused on elite influencers or their speech is lacking or misunderstood because of the nature of their disability.

How then do we conceptualize a right of free speech for the disabled? Can we think about the Americans with Disabilities Act (ADA) in connection with a right of free expression? Do we have any case law that might lead us to consider such a connection? (The short answer to this last question, I think, is “yes.” More on that below.)

Haben Girma, the first deaf/blind student to graduate from Harvard Law School, had me reflecting on these questions during her visit last month to UNC. Haben, who was invited by Advocates for Carolina, a student group formed to reflect on life for the disabled on the UNC campus, spoke about her disability and her story to WUNC and to more than 100 students gathered in the Student Union. She now spends her days as a Skadden Fellow at Disability Rights Advocates in San Francisco, where she works to increase the accessibility of digital instructional materials at colleges and universities.

Like others who have struggled to make a life for themselves amidst an able-bodied culture, Haben refused to allow society to shut her out. She has spent her young life problem-solving around a profound inability to engage in the marketplace of ideas as seamlessly as the rest of us do. While certainly no law has directly infringed Haben’s right to free speech, it is very clear that her speech experience has been profoundly different than the experiences of most U.S. citizens.

That raises the question of government responsibility: What is the state’s role, if any, in assuring access to the marketplace of ideas for those whose access is impaired by a physical and/or mental limitation? And how can digital and online media technologies contribute to that access?

It’s a question I’m interested in thinking more about after Haben’s visit and in the wake of a settlement last year between Netflix and the National Association of the Deaf. The Netflix case revolved around the movie service’s “Watch Instantly” on-demand service, which failed to provide closed captioning on all content. The case ended with a consent decree that mandated Netflix provide captions on all streamed programming by 2014.

Federal District Court Judge Michael Ponsor rejected Netflix’s argument that the American with Disabilities Act (ADA) did not require Internet Service Providers and other digital media providers to make accommodations:

“In a society in which business is increasingly conducted online, excluding businesses that sell services through the Internet from the ADA would run afoul of the purposes of the ADA and would severely frustrate Congress’s intent that individuals with disabilities fully enjoy the goods, services, privileges and advantages, available indiscriminately to other members of the general public.”

In other words, the Internet’s marketplace of ideas must and should be accessible to the disabled. This expanded view of the ADA bears watching for its First Amendment implications going forward. In the meantime, I’ll be sending the link to this post to Haben, hoping that she will post a response below.

 

 

 

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New York AG wants Airbnb to turn over user information

By on November 13, 2013 in First Amendment, Internet, Privacy

airbnb

Short-term rental website Airbnb provides an alternative to hotels and makes it easier for people to sublet their homes while they’re out of town, but its New York users could be in legal trouble.

The state of New York has subpoenaed Airbnb in an attempt to prove that some users renting out rooms on the site have violated state rental and tax laws. The site, which allows users to rent or sublet their homes on a short-term basis, is fighting the state’s request for the names, email addresses, physical addresses, gross revenue, and tax-related communications of its New York users.

The state of New York is attempting to prove that Airbnb users have violated occupancy tax laws and a state law against subletting a dwelling for fewer than 30 days. Its subpoena applies to all “hosts” who rent New York accommodations on Airbnb and do not stay in the accommodations during the rental period.

Airbnb has filed a motion to quash the subpoena, calling it an overly broad “fishing expedition.”

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

By on October 31, 2013 in First Amendment, Internet

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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