What in the world is going on with our state attorneys general?
First there was the amazing Andrew Shirvell, former Michigan assistant attorney general. Shirvell used every form of media, social and otherwise, to
stalk make people aware of the demonic student body president of the University of Michigan, Chris Armstrong. Shirvell claimed that Armstrong, who is openly gay, was imposing his notorious “homosexual agenda” on the Wolverine faithful, and had to be stopped. After being banned from the University of Michigan campus and allegedly lying to his boss, Attorney General Mike Cox, Shirvell was finally relieved of his duties.
Last week, another news item caught my interest. Jeffrey Cox, a deputy attorney general in Indiana (no relation to the AG from Michigan), tweeted the liberal magazine Mother Jones that live ammunition should be used against the protestors at the Wisconsin Capitol. A few hours later, he was fired.
Such quick and harsh punishment struck me as going a bit overboard, and it seems that Jeff Cox might have a cause of action on his hands…
I know that sending a message online calling for the use of live ammo against unarmed protestors probably wasn’t the brightest thing in the world to do, especially if you work for a public agency charged with enforcing the law, but I also understand how politics can get highly charged and hyperbole can take over. This is obviously not the most receptive climate in which to use that type of language, since it was only in January that Jared Lee Loughner put a bullet through Congresswoman Gabby Giffords’s head. (I think it has become clear that Loughner is not a right-wing nut job, he’s just a nut job; nevertheless, I would much rather see the rhetoric on both sides toned down, and have reasonable people debate each other calmly.)
Jeff Cox likes to engage in debate as well. At least that’s what he claimed he was trying to do when Mother Jones contacted him again, asking if he really believed that the Wisconsin protestors should be mowed down with bullets. I’m sure he told them he wasn’t serious, right? Not really. Instead, Cox gave the following response:
“You’re damn right I advocate deadly force.”
Cox later told other members of the media that his comments were meant in jest, and that he normally says extreme things to engage people in debate.
Here is my issue with that. If you disagree with the protestors in Wisconsin, or if you believe that abolishing collective bargaining is simply a tactic to destroy unions, that’s fine, let’s debate that. But when your comments advocate the shooting of unarmed people, there is really nothing to debate, in my opinion.
It also did not help Cox’s cause that Indiana is facing a situation similar to the one in Wisconsin.
Famed constitutional law profsessor Jonathan Turley interviewed Jeff Cox after Cox’s firing. Citing two decisions, Garcetti v. Ceballos and Pickering v Board of Education, Turley suggested that Cox would have a strong case for arguing that his firing was a violation of First Amendment rights. Pickering is simple enough to discern. A teacher was fired after writing a letter to the editor criticizing the local school board and school superintendent over a bond issue. The Court held that by itself, absent proof of “knowingly or recklessly” making false statements, the letter was not a matter of public concern, and ordered the teacher be reinstated.
Garcetti is more complicated. Basically, Ceballos, an assistant DA in Los Angeles, wrote a memo asking that a case be dismissed due to issues he found in an affidavit that was used as a basis for a warrant. The DA’s office went on to prosecute the case anyway, and Ceballos testified for the defense about the warrant. The warrant was eventually upheld, and Ceballos claimed afterward that he had suffered retaliation in the office by being transferred and not promoted.
Although the Court held in a 5-4 decision that a citizen speaking in an official capacity was not necessarily protected by the First Amendment, Turley did mention this note from Justice Kennedy, who authored the opinion:
At the same time, the Court has recognized that a citizen who works for the government is nonetheless a citizen. The First Amendment limits the ability of a public employer to leverage the employment relationship to restrict, incidentally or intentionally, the liberties employees enjoy in their capacities as private citizens. See Perry v. Sindermann, 408 U. S. 593, 597 (1972) . So long as employees are speaking as citizens about matters of public concern, they must face only those speech restrictions that are necessary for their employers to operate efficiently and effectively. See, e.g., Connick, supra, at 147 (“Our responsibility is to ensure that citizens are not deprived of fundamental rights by virtue of working for the government”).
In this instance, Cox was not acting in his official duties, but rather through his private Twitter account.
Now Cox must be even more emboldened, since SCOTUS held on Wednesday that it’s perfectly fine to protest at the funerals of fallen soldiers. (Personally, I agree with Alito’s dissent.)
Cox has since stated, however, that perhaps his tweets about killing protestors may not have been such a good idea, which I guess is the moral of the story. As has been repeated over and over again, be careful about what you post online. Ironically, as an aside, look what was found yesterday outside the Wisconsin Capitol.
That said, Cox may have a decent shot at winning a suit against the state of Indiana. Hopefully he won’t feel the need to bring live ammunition.
Gabe Acevedo is an attorney in Washington, D.C. and the publisher of the e-discovery blog GabesGuide.com. His articles on legal technology and discovery issues appear regularly on Above The Law. You can reach him at firstname.lastname@example.org and follow him on Twitter.