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Tuesday, November 15, 2005

Following Harriet Miers?

So, where did A3G and David Lat disappear? If you go to UTR's website you get a password protected site that basically suggests the witch is dead and gone, or at least on a long vacation. According to this story, both Lat and his supervisor's spokesperson have declined to comment:

Lat, who sounded uneasy with his newfound fame Monday, quickly said he would need to check with his employer this time around before talking. A few minutes later, he politely declined to comment. Michael Drewniak, spokesman for U.S.Attorney Christopher Christie, also declined to comment. Then, at about 5 p.m. Monday, the blog had been removed. What that meant for Lat was unclear.

My guess is that this "issue" is currently being tossed up the chain of command. I have no idea whether Lat will face intra-DOJ consequences for his work as UTR’s author. But it’s fair to say that he could. As to the legal issues, it used to be the answer was clear. As Justice Holmes once said, "There may be a constitutional right to talk politics, but there is no constitutional right to be a policeman." That changed in Pickering in 1967, when the Court extended some protections to public employee speech. As the doctrine unfolded over the next few decades, if a public employee’s speech is on matters of public concern, she cannot be fired unless it was going to interfere with job performance or undermine public confidence or the ability of the office to conduct its work (the latter two elements perhaps being tied together). My sense is that Lat’s speech in UTR may be the kind that crosses the line here – after all, he and his colleagues appear before the “hotties” all the time. Thus, I’m chagrined to say it but UTR might not be protected speech for Lat qua government employee. Whether someone as talented as Lat would be terminated for the speech is unclear. He may be given a difficult choice: the job or the blog. I’m not sure what’s the bigger public loss: Lat being terminated or Lat being retained with no UTR in the future. As the French say, tant pis.

Update: Howard, I just discovered, has been all over this story today, with interviews of Toobin, and the journalist who wrote the NJ paper story

Posted by Dan Markel on November 15, 2005 at 03:41 PM in Blogging | Permalink

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» A3G vanishes from A Frolic of Her Own
I tried to access UTR yesterday in order to link to it, and found the site password-protected. Prawfsblawg has an explanation of sorts. I must say that I find David Lat's decision to out himself peculiar. Did he really think [Read More]

Tracked on Nov 15, 2005 5:05:44 PM

Comments

I recall an environmental law blog run by DOJ attorneys that the DOJ forced to shut down, although the name escapes me. But my understanding, based on that event, was that the DOJ had a blanket policy against employee blogging. As you note, perhaps such a policy would be unenforceable under Pickering. But I doubt Lat was unaware of it. Also, if he posted from his work computer (and several sources report that he at least sent emails as A3G from it), he probably violated his office's computer-use policy. Blogging during work hours (in violation of a clear policy) makes it a closer case than a purely private, away-from-work speech case.

Posted by: Milbarge | Nov 16, 2005 8:48:15 AM

Dan: this may well be an excellent legal analysis, but it has about as much practical relevance as the citing of the Second Restatement of Contracts to boy scouts who did a bad job washing your car. AUSAs are not petty bureaucrats or postal workers. When they misbehave in such subtle manner, they do not get fired. Instead, they are asked to leave – and the asking is probably done without words.

Posted by: Kate Litvak | Nov 16, 2005 5:12:53 PM

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