Tuesday, November 22, 2005

At the Intersection of Blogging and Employment Law

As some readers of this blog may be aware, there was a mini scandal in the blogging world last week when the author of the Underneath Their Robes blog (who utilized the pseudonym Article III Groupie (AG3)) was revealed as being one David Lat, an assistant United States Attorney for the District of New Jersey.  Recent press articles suggest that Mr. Lat's job with the Justice Department may be in jeopardy because of his blogging activties.

Which all raises a very interesting public employment law question: To what extent can Mr. Lat be terminated from his public employment for engaging in this blogging activity?  The answer would seem to turn on the Connick/Pickering First Amendment "two step."  First, was the speech on a matter of public concern, and, if so, does the government's interest in efficiency outweight the First Amendment speech rights of Mr. Lat?

There is no easy answer to either of these questions, but here are some thoughts. Given that Underneath Their Robes has been billed as the premiere gossip site on federal judges in America, it is not evident that there is any real public concern being addressed (at least not in the sense of core  political speech, unless knowing who are the "Superhotties of the Federal Judiciary" counts).  But even if we assume "public concern," doesn't the U.S. Attorney in New Jersey have the right (nay, responsibility) to maintain the credibility and stature of his organization in the eyes of the public in these circumstances?  And won't this revelation about Mr. Lat's identity cause substantial disruption  to the United States Attorney's functions and missions?

One might also think of the Supreme Court case in Dale dealing with expressive associations and the rights of the Boy Scouts to choose whom they wish to be the public persona of their organization. Is the United States Attorney's office an expressive association? (We might know more after the Solomon Amendment case is decided)  And if so, under Dale, does it have the right not to associate with bloggers like Mr. Lat?

All comments are welcome.

Hat tip: Howard

Posted by:  Paul M. Secunda


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Tracked on Dec 4, 2005 9:59:40 AM


What struck me when first reading the article was the immediate concern of the U.S. Attorney that Mr. Lat's effectiveness as an advocate would be compromised by the comments now linked to him about particular judges. Those judges and friends of those judges might be biased against him, and defendants might offer motions to recuse to judges he had praised in particular ways.

Posted by: Art Leonard | Nov 25, 2005 4:44:20 AM

Is there any reporting on how long Mr. Lat has been an AUSA? In August of 2005, he was asking about hiring practices at SDNY here:


Does this mean he brought the blog with him to the AUSA's office, or that he was only pretending to ask about how to get hired there?

(the A stands for Awesome)

Posted by: Samuel Alito | Nov 25, 2005 11:17:00 AM

Two thoughts:

1) Mr. Lat, as recently as August 2005, was asking about how to get hired as an AUSA here:


Is there any reporting on how long he had been an AUSA? The blog started in 2004; had he brought it with him, or were his questions on AutoAdmit disingenuous?

2) While he has not been speaking publicly, he was seen breakfasting last weekend with literary agent David Kuhn, according to Gawker:


he seems to at least be considering giving up the AUSA job for a writing career.

Posted by: Samuel Alito | Nov 25, 2005 11:21:06 AM

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