In article <telecom24.254.10@telecom-digest.org>,
<hancock4@bbs.cpcn.com> wrote:
> Robert Bonomi wrote:
>>> Sorry, but I know too many government agencies that have strict rules
>>> on what their employees may say using any government equipment, and
>>> AFAIK these rules are perfectly legal and upheld.
>> Generally, true, *today*. There is a _long_ history of attempts at
>> such rules that have been held partially or wholly void, necessitating
>> re-writes.
> Until around 1975 government employees were under many restrictions.
> There was a law, the Hatch Act, that prohibited politicking by
> government employees.
Don't tell anybody, but the Hatch Act is *still* on the books.
Significantly modified, for federal (and D.C.) employess _only_), in
1993.
Don't take my word for it -- see <http://www.osc.gov/hatchact.htm>
> That made sense in the idea it was to avoid
> government employees serving as patronage or beholden to elected
> officials for their jobs. Until that time Federal employees had to
> sign off that they weren't Communists.
Pssst! Many, if not all, federal agency employees are *still*
required to sign loyalty oaths. While they don't mention the
Communist Party by name (the Supreme Court threw that out several
times in the 1950's and 1960's) the employ does swear that he 'is not,
and will not become' a mamber of any organization dedicated to the
overhtrow of the United States Government. Many states require it as
well -- Calif, Okla, Fla, Arizona, Lousiania, Georgia, just to mention
a few.
> They didn't even want to see bumper stickers on cars in employee
> parking lots. They wanted the appearance of strict neutrality.
> The laws today are different. There certainly does remain some
> restrictions within the workplace.
Oh, lets see.
*NO* federal (or District of Columbia) employee may:
-- be a candidate for public office in partisan elections
-- engage in political activity while:
+ on duty
+ in a government office
+ wearing an official uniform
+ using a government vehicle
-- wear partisan political buttons on duty
In addition, employees in 'select' departments/agencies/etc, may not:
-- campaign for or against a candidate or slate of candidates in partisan
elections
-- make campaign speeches
-- collect contributions or sell tickets to political fund raising
functions
-- distribute campaign material in partisan elections
-- organize or manage political rallies or meetings
-- hold office in political clubs or parties
-- circulate nominating petitions
-- work to register voters for one party only
-- wear political buttons at work
Note that for those 'select' employes that for all but the last item,
those restrictions apply to on AND _off_the_job_ activities.
The Hatch Act restrictions for State-level employees of agencies that
get Federal funding are somewhat more restrictive than the first set
of Federal restrictions above.
>> Government-as-employer is a _very_ complex legal situation. There is a
>> difficult balancing act between exercise of 'rights' _as_employer_ and
>> infringing on the 'civil rights' of the employee.
>> The body of law regarding what is allowable/acceptable in a government
>> work-place is significantly different that what is allowable/
>> acceptable in a private employer's workplace.
> There is substantial variety among government employers and private
> employers. But I am not aware of "significant" differences between
> public and private as to day-to-day workplace activity. (There may be
> differences in hiring and firing procedures on account of civil
> service, but some unionized private companies aren't very different in
> that regard.
Ok, so you "don't know what you don't know".
Just one example:
In private industry, and employer can allow use of company property
for non-work activities by employees -- e.g. using the copy machine to
run off flyeres for a local club activity.
In a federal government agency, if an employee does that it they are
comitting a *crime* -- one with _prison time_ attached to it. Whether
or not they have the 'ok' of their supervisor. 18 USC 641
Incidentally, that same statute can be used to prosecute those who
send unwanted commercial solication (aka "spam") e-mails to fed
government mail-servers.
Then see above, regarding "Hatch Act" restrictions on political
activity. If a Federal employee violates any of those rules, and the
review board finds that the violation does *not* merit their getting
fired, they lose a month's pay, guaranteed. Those are the _only_ two
penalties allowed -- to be fired or 'fined' a month's pay.
At the State/local level, if the agency does not fire the violator,
they must give back Fed Funding to the tune of _two_years_ worth of
the funding for that violator's salary, or lose *all* future funding.
>>> Sorry, but rules do exist prohibiting "specific things" in government
>>> and in schools.
>> Would you care to itemize the 'saying specific things' forbidden by
>> those rules?
> Among other things:
> 1) No pornography.
Doesn't meet the 'SAYING specific things is forbidden' requirement.
Not a 'speech' issue.
> 2) Illegal pornography will be turned over to the police.
Doesn't meet the 'SAYING specific things is forbidden' requirement.
Not a 'speech' issue.
> 3) No harassment (per sexual harassment standards).
That one is, *peripherally*, a speech issue. HOWEVER, case law holds
that 'pattern and manner of behavior' is _much_ more of a determining
factor than the words used. "Go suck a fag", or "what time shall I
knock you up?", for example, are not necessarily sexually related.
Harrassment is much more about _how_ a thing is said, than *what* is
said.
> 4) No non-work related material (doesn't apply in the library).
Doesn't meet the 'SAYING specific things is forbidden' requirement.
Not a 'speech' issue.
> 5) No release of private or restricted information.
*NOT* a 'speech' issue -- although it has the superficial appearance of
being speech related.
> 6) Compliance with policy on inter-dept communications (doesn't
> apply in the library).
Whatever _that_ means. Is it "If you're going to speak to another
department, this is how it shall be done?" Or '_you_ are not allow to
ask this other department to do things -- the request must come from
your boss?" Or what?
This is probably a restriction on _how_ things are to be said, as
distinct from _what_ may be said.
> 7) Compliance with various technical rules to protect system
> integrity.
Doesn't meet the 'SAYING specific things is forbidden' requirement.
Not a 'speech' issue.
Final score: 0.25 out of 7
>> That aside, Because something _is_ publicly funded, and made available
>> to the public, 'at large', *does* mean that there are restrictions and
>> limitations that the government can exercise over what 'the public'
>> can do on/with that 'something'.
> There are restrictions on EVERYTHING in this world. A building has to
> comply with zoning and fire codes. A private building open to the
> public (ie a store or restaurant) must comply with further
> regulations.
"So what?" applies. The fact that some kinds of restrictions _are_
allowed does not disprove a claim that other kinds of restrictions are
*NOT* allowed.
I didn't dispute that some kinds of restrictions are allowed.
I do claim that governmental activities are prohibited from engaging
in *some* kinds of restrictions.
> None the less, within the law, owners of property, BOTH government or
> private, may enact their own rules of conduct and procedure within
> their properties. Years ago (before the laws), a governmentn director
> banned smoking in his dept, for example. Certain attire may be
> required, for example.
Again, "so what?"
Some kinds of governmental restrictions are allowed. Some are *NOT*.
I can cite a Supreme Court ruling expressly invalidating a
governmental unit 'dress code' item that forbade the wearing of
certain items of apparel.
An organization in 'private industry' would have had *NO* problem
enforcing that particular dress-code item..
> Indeed, in some cases government employees have more restrictions than
> private employees, such as poll workers and cops showing neutrality
> while on duty during an election.
Again, "so what?"
Evidence of the existance of some kinds of restrictions is neither
'evidence against", nor "disproof of", a claim that some kinds of
restrictions are proscribed.
[ restoring context that the prior poster "conveniently" forgot to include ]
|| There is no such thing as unlimited free speech. Try screaming a
|| tirade at your neighbor and you'll get a summons for disorderly
|| conduct. There are many examples.
>> Which has nothing to do with 'free speech', in point of fact. The
>> summons is for _how_ you did things, not _what_ you said.
> It has EVERYTHING to do with what is SAID.
Wrong.
Disproof by counter-example. If you said _exactly_ the same words to
that neighbor, in a calm and reasoned tone of voice, you will *NOT*
get a summons for 'disorderly conduct'.
*HOW* you said those things is what gets the summons for "disorderly
CONDUCT". It is the _conduect_ that is the problem, not the language.
> If I threaten to kill you,
> you can have me arrested and convicted for making threats.
You're obviously ignorant of the existing 'case law' on *that* point.
With the exception of a remark of that nature about the President of
the United States, one cannot be charged/convicted *just* for making
such a remark.
The *words* "I'm going to kill you", or "I could kill you", or similar
are _not_ illegal to say. They can be said in many ways that do *not*
constitute a 'threat'. Saying the words is not forbidden by any law.
Making a (believable) _threat_, is a different matter, *regardless* of
the words used. Saying _exactly_ the same words, in a manner and/or
context that does not constitute a threat is *not* illegal
I, personally, have shouted "Fire!" in a crowded theater -- one of the
'textbook' examples of 'prohibited' speech. Strangely enough, the two
cops standing less than 15 feet away from me, did *absolutely*
nothing. Can you guess why?
> Other statements can result in conviction for disorderly conduct
FALSE TO FACT. No statement, _in_and_of_itself_, constitutes
disorderly conduct. The "style", and "manner", in which the statement
was made is what constutes the 'conduct' that is objectionable.
> harassment.
The 'words' do not constitute harassment. The *pattern*of*behavior* does.
> If I libel or slander you, you can sue me for damages.
Which is *UTTERLY* irrelevant to 1st Amendment rights, and
restrictions on *governmental* prohibitions on speech. The
_government_ does *not* prohibit your saying libelous/slanderous
things. The -government- does *not* prescribe any specific penalties
for those actions.
Anyway, not bad for a strawman argument.
Very nice 'selective editing' -- too bad you got caught at it.
>> Regulating/restricting the _content_ of speech has very high barriers
>> to overcome.
>> Regulating/restricting the _form_ of speech faces far, _far_ lower
>> barriers.
> The barriers are not as high as you think.
The court record confirms that the barriers are there. Cases that
have gone to the Supreme Court, and the attempted governmental
prohibition on a particular form of speech has been held to be "not
permissible".
Just *try* to find a case where a _private_industry_ prohibition has
been held invalid. On 1st Amend. grounds.
> Further, many argue (I don't quite agree) that regulating the form of
> speech effectively limits the content of speech.
What 'many argue' is not compelling law. <grin>
That aside, the question *is* a thorny one. A great deal depends on
the 'availability' of _alternate_ forms of speech.
It is long-standing policy that regulation of 'time, place, and
manneer' of speech _is_ allowable where there is a bona-fide public
interest being served. Regulation of the "content" of speech reguire
a "compelling" public interest, and such regulation must be drawn 'as
narrowly as practical' to accomplish the stated goal.
> For instance, some
> demand that free speech be allowed in shopping malls (which are
> private property) because the malls are the "new Main Street". Courts
> have been mixed on that.
Not very mixed, at least at the Federal level. Unless the mall
operator is "acting in the role of government", for which there are an
articulated set of tests, the mall *is* private property and the
operator is free to restrict access as they see fit. It is possble
that State law may impose different limits, on a local basis.
> Many advocates argue that standing on a
> corner handing out leaflets (a very classic form of free speech) has
> so little impact that they should be allowed stronger forms of speech.
Which they have _ready_ access to. Newspaper ads, radio & TV
commericals. But, they don't have the _money_ for that. So they
think they deserve 'special treatment'. *sigh*
Robert Bonomi (bonomi@host122.r-bonomi.com)