Tuesday, November 22, 2005
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