A Florida Assistant State Attorney who refused to stop speaking at political gatherings has been fired from her job as an assistant state attorney.  She was speaking at Tea parties and on radio stations. Much like Jerry Maguire and his infamous “fewer clients and more personal attention” memo, KrisAnne Hall was let go due to public rhetoric about smaller government.  The difference is that Jerry McGuire worked for a private company so the 1st Amendment did not apply.  Ms. Hall works for the government so she would come under its purview.

The State Attorney, Skip Jarvis told KrisAnne Hall that she was free to say and do what she wanted, but that she “could not do so while assistant counsel for the state.”

“She was speaking at some political events, some things were anti-state and anti-government,” Jarvis said by phone Tuesday morning. “I emailed her and said look you can’t do that as an assistant state attorney. Our client is the state of Florida.”

Jarvis also stated that at these gatherings she was speaking about a desire for less government and smaller budgets,”

As a general proposition, Skip is right. Hall is not free to say whatever she wants as a state employee and as an attorney.  Aside from her employment, there are Rules Of Professional Conduct that regulate many of the things a lawyer can publicly say about pending cases, judges etc.  Jarvis however, is walking a constitutional  tightrope  as to firing  Hall for criticizing the government.

The Supreme Court has held that  government employment can not be conditioned on the surrender of constitutional rights. After that, it gets murky and is dependent to a large extent on content and context of the political speech.  The mere fact that the speech is political is NOT enough to lose 1st Amendment protection especially in matters of public concern.  Examples of matters of public concern would be Health Care Reform and yes, the size of government.

Jarvis is going to have a hard time successfully arguing that because the “state is the client” her expression of political beliefs are relevant to a  hiring or retention decision.  He argues that she is in effect, publicly criticizing her own client. I have a hard time believing the courts or the State Bar would give that broad a reading as to what constitutes a “client” for 1st Amendment purposes outside of her commenting publicly on a specific the State Attorney is involved in . That broad a reading would amount to a complete abrogation of 1st Amendment rights upon employment.

I also find it curious that Jarvis claims it is not a 1st Amendment Issue.  She was fired by his own admission because of political speech and her firing constituted state action.  That sounds like a 1st Amendment issue to me.

It appears that Jarvis’s decision was a  content related decision and can not be supported under the 1st Amendment principals.   By his own words, he seems to be saying that she was being fired due to her public support of  Tea Party politics and Jarvis didn’t like that.  KrisAnne Hall should be reinstated.

The Supreme Court has said no but oddly enough the  former  Alaska high school student Joseph Frederick who offered Jesus up a toke during a school sanctioned Olympics rally  will be $45,000  richer for it. The money no doubt to be used for some prime Mexican sensimillia for further offerings.  The school district will pay Frederick $45,000. In exchange Frederick will drop remaining claims not heard by the U.S. Supreme Court.  The settlement also calls for the district to spend as much as $5,000 to hire a neutral constitutional law expert to chair a forum on student speech at his former high school.

The United States Supreme Court initially agreed to take the case after Frederick, a Juneau, Alaska high was suspended for ten days for allegedly “disrupting” an off-campus school sanctioned rally by unfurling a 14-foot-long banner that read:

“BONG HITS FOR JESUS”

Frederick was suspended in 2002 after he unfurled the banner just outside school grounds as the Olympic torch relay moved through the Alaskan capitol, headed for the Winter Games in Salt Lake City. Frederick was not on school grounds when he put up the banner; he was standing on a public sidewalk. He was asked to take the sign down and refused. He was then suspended for ten days. He appealed to the 9th Circuit Court of Appeals, who agreed that his First Amendment rights were infringed upon. The 9th Circuit found that the banner did not disrupt the educational mission of the school, as it was on a public sidewalk and therefore, was considered protected free speech. The school district appealed to the United States Supreme Court. The school’s position was that it was a school-sponsored event in which the students were dismissed from class, and therefore, he should be bound by the same rules as if he were in the classroom. Ken Star, famous for checking into former President Bill Clinton’s “cigar collection,” represented the school district. (Mr. Star was the independent prosecutor in the Lewinsky “affair.”)

The Supreme Court ruled in favor of the school district upholding their right to suspend Morse. The justices ruled that Frederick’s free speech rights were not violated by his suspension over what the majority’s written opinion called a “sophomoric” banner.   In writing for the majority Chief Justice John Roberts stated:

“It was reasonable for (the principal) to conclude that the banner promoted illegal drug use– and that failing to act would send a powerful message to the students in her charge,” (Opinion)

Roberts also stated that while the court has limited student free speech rights in the past, young people do not give up all their First Amendment rights when they enter a school sending a strong signal that this case is limited to its facts. The Supreme Court ruling while taking the school district off the hook under the United States Constitution did not put an end to the controversy.  There was still litigation pending in the appellate court to determine whether Fredrick’s rights were violated under the Free Speech Provision of the Alaska Constitution. The settlement puts that to rest as well.  There very well could have been a different result under the Alaska Constitution which much to Sarah Palin’s chagrin reads differently than the U.S Constitution.

“Every person may freely speak, write, and publish on all subjects, being responsible for the abuse of that right.”

I frankly called this one wrong when the case first hit the news. I would have bet the mortgage that even a conservative court  was going to come down on the side of the student.  Public sidewalk. Not a voluntary membership school-sponsored event such as football, band, etc., which are privileges. The school did not offer students the opportunity not to take the day off from school.  In my opinion once the student left school grounds, he was “Joe Q. Bong-hitter” and was free to put up any sign he wanted as long as it did not cause an “educational disruption,” incite others to violence, or break some constitutional man-made law. The “center right” Supreme Court did not agree with me holding that a banner “promoting drug use” did disrupt the educational mission.  I did not see the banner as promoting drug use.

How would the landscape of such cases change under the Barrack Obama presidency with as many as 3 new appointments to the Supreme Court?   There is no doubt that if President-elect Obama gets the right people on the bench we will have a much more activist court.  It will  drive the Federalists crazy.  When you throw out terms such as “economic justice” it leaves little doubt that Constitutional definitions and context are fair game for radical change. Every provision of the Constitutional will be looked at in context of who is invoking it and the justice sought as compared to what it actually says. This will be especially interesting in the free speech and right to privacy areas. Would a new left leaning court find the principal’s interpretations and actions reasonable?  What does that mean for the next student offer up some “religious smoke”?  What if the sign had said “HOOKA HITS FOR JESUS!“  Jesus is probably getting high right now at the thought of it…

Alexandre Dumas and his character, Edmond Dantès, the wrongfully imprisoned protagonist of The Count of Monte Cristo would be happy to know that order has finally been restored to the world and the U.S Constitution.

The Supreme court in a 5-4 decision has ruled that President Bush can not use the Military Commissions Act of 2006 to create his own private “Gulag Archipelago“. The court has ruled that the 200+ detainees being held as “enemy combatants” at Guantanamo Bay can no longer be held indefinitely in “Siberian Hell” without some semblance of due process. They have the right to challenge their detention in U.S. Civil Courts. A huge victory for the Constitution of the United States and all those who oppose “defacto monarchical” rule.

Are these detainees combatants against the Constitution and freedoms of the United States? Maybe they are. Maybe they deserve everything they eventually get or have already received. I have no idea. Neither do you. Neither does President Bush. No independent fact finder has ever been given the opportunity to hear an “offer of proof”. What we have is a classic case of “it is because I say it is”. Thats great when punishing your children but not when denying basic human rights. The most basic of these being the rights of freedom and to know why you are being denied that freedom. If it is proven that any or all of these people raised arms against the United States, try them in accordance with military rules and let the chips fall where they may. I have no problem with that. The problem I have is with the “vertically integrated” way these decisions are being made. Decisions made by President Bush and cascading straight down the “yes sir” line right to the gallows. That is a monarchy not a democracy. There are some that might argue for the much harsher “D” word.

The argument that “classified information” will have to be disclosed in any habeas corpus hearing is a fallacy. If a United States Attorney is not capable of coming up with a court acceptable way of proving the necessity of detention without exposing such information, I question his/her qualifications for the job. I have a hard time believing this is the first time they have ever dealt with the protection of classified information in a civil court setting. Spare me the theatrics.

I can’t help but think back to when I saw the movie “The Rock“. Sean Connery played a former British agent who was caught by the United States with devastating classified information in his possession. He was held by the United States without bail, trial or identity for over 30 years. At the time I thought the premise was ridiculous.

In the end The Supreme Court has spoken for those imprisoned and muzzled even if they probably are dangerous scumbags. We are still a democracy even at 5-4. Score one for the Constitution.

The Texas Court of Appeals has finally restored order to one tiny corner of the universe. It has ordered the return of the Texas Polygamist Children to their parents holding that there was an almost complete failure of proof to justify such an action. You can read the opinion here.

The removal of the children at th Texas Polygamist Compound is the latest example of knee jerk panic leading to mass violations of human and constitutional rights.

I am braced for all the outrage comments but The Texas Court Of Appeal did the right thing in returning the Texas Polygamist Children to their parents. What happened here was nothing more than a an attempt to use the court system to kidnap children because we panicked. This was a “legal lynch mob”. Not legal in the sense that what was done was legitimate, legal in the sense that it was a judicial lynching.

I am not saying there are children who were not in legitimate danger. I frankly agree that they may have been. What I am saying is this is not Communist China or North Korea. Those parents had and have rights. You can not mass bypass the rights of all these parents by doing it tecnically right for a few and using “panicked supposition” for the rest.

Panic and fear are not legal grounds to circumvent the law. How have these knee jerk panic decisions that ultimately wasted time and money with no real benefit to the children protected those rights? The children are going back. (an appeal if any will fail) and if anything was going on the parents and their lawyers are ready and loaded for bear.

Is the greater tragedy that the children must be returned or that it will now be more difficult then ever to help them even doing it the right way because the state tipped its hand with the panic move.

I have said it before and I will say it again. The greatest threat to mankind is knee jerk panic and knee jerk stupidity. The public sees something that so disgusts and shakes them to the very core of everything that we deem decent and the next thing you know all hell breaks lose.

It is like throwing a rock into the lake and the ripple effect. At the center where the rocks hits is the incident that disgusts us. What we don’t think about at the time is that those ripples moving outward begin to consume everything in their path that at the closest point may be similar but at the the furthest point from ground zero, we are burning books, arresting every kid who draws a disturbing picture in his notebook and calling the cops on our neighbor because he drives and ice cream truck and therefore must be abusing children.

At the time we are all consumed with our panic and making irrational decisions we completely forget about the fact that for every decision of flawed logic we make at the center of the ripples, cause and effect pushes outward with often tragic consequences that we have neither thought about nor care about in our all consuming fear and hate. Knee Jerk panic at its’ best.

For all us constructionists I am aware the Constitution of the United States certainly does not prohibit legal lynchings by specific words but I don’t have to go back and read it to know that the words “blessings of liberty” are in there.

A “rubber stamped” removal of the children based on no proof at all chills me to the bone. In order to lose the rights instilled by that blessing, we have something called Due Process. I don’t have to read the Constitution to know those words are in there as well. Due process includes having to meet your burden before punishment is inflicted.

While I certainly understand the argument that because there was compliance with the Texas Family Code there was no due process violation, using statisitics and self serving reports and conclusions to remove children en-mass by-passing your burden of proof for each indiviudal parent-child relationship sounds smells bad to me…..

I did look for the words “legal lynch mob” but could not find them anywhere. If anyone reads the Constution and finds them please let me know.

You can read the Constitution Of The United States right here.

I say legal lynch mob… What do you think?

BLOG UPDATE 5/24/08 The State of Texas has filed an emergency appeal to the Texas Supreme Court. You can read the emergency motion here.

BLOG UPDATE 5/29/08 The Texas Supreme Court Upholds Court Of Appeals Ruling and Orders the Texas Polygamist Children Returned To Their Parents. Read about it here.  Read the Supreme Court Opinion here.