Arapahoe County is threatening to fire a veteran Public Works employee for promoting the fact that he is an English speaking American."They claim it's offensive and I've been accused of discrimination and harassment, believe it or not, because of this," said Mike Gray, a heavy equipment operator with the Arapahoe County Road and Bridge Department for 16 years. The problems began last spring. Gray, 50, owns a lawn service business on the side. He was routinely driving to work in his pickup truck towing a trailer that he uses to carry lawn mowing equipment for his business. On the side of his trailer, the married father of two affixed a sign that reads "Lawn Services Done With Pride!! By An English Speaking American."The sign also gives Gray's phone number and the lettering is over a background of an American flag."There are a lot of people in the lawn service that are non-English speaking," Gray said. "Customers and different people were telling me that they have a hard time trying to communicate with them about the work they want done on their yards. I just want to let people know they at least can communicate with me when I do work on their property." Gray also wore a hat to work that says "U.S. Border Patrol," which he says was a gift from his son.
Arapahoe County officials told Gray the sign and hat must go or else. In a Nov. 10, 2005, letter, his supervisor Monty Sedlak wrote the following: "Some of your conduct ... is reprehensible and discriminatory to our non-English speaking and/or Hispanic workforce. You are in violation of ... guidelines which ensure a workplace free from harassment and sensitive to the diversity of employees." "You are required to permanently remove your cap from the workplace. It is offensive and harassing. Your business sign, if on work premises, must be completely covered at all times. This behavior is inappropriate and any further incidents of this nature may result in further disciplinary action up to and including termination of employment."
Gray has hired an attorney to fight the County on First Amendment grounds. Sorry, Mr. Gray, the government is your employer, and it may forbid speech at the workplace that it thinks is offensive to other workers, even if you think your boss is being hypersensitive (and personally, I don't see anything "harassing" about wearing a hat that says "U.S. Border Patrol," though I can see, in context, why some would find it offensive). What the government could not do is require you to cover your sign, or forbid you to wear your hat, outside the workplace.
On the other hand, the government may fire a prosecutor who attends racist meetings, given that having such a prosecutor on staff is likely to reduce public faith in the fairness of the justice system.
Yes, I'm troubled by the fact that the government, acting as employer, has such censorious powers. In the case of the prosecutor, it's pretty much unavoidable. In Mr. Gray's case, it provides another reason to support privatization of peripheral government functions.
This situation is a laughable illustration of how thin-skinned and pathetic we've become.
Public Works is not a peripheral government job. I have heard you make this same rant so many times on subjects having nothing to do with that issue and I have resisted commenting because it would be off-topic, but no more. I believe you have said that education and now public works are inappropriate uses of the government's power. From where does this argument come? Where did you learn history? States were involved in education in the 18th century. States were involved in public works in 18th century. George Washington and John Adams called for a national university. Thomas Jefferson and Benjamin Franklin were instrumental in creating not only the public universities UPenn and UVA, but also their states' school system. The National Democrats of the 19th century were calling for the federal government to be involved to public works. Why is that not a basic function of government?
Where in your imagination is the legal or practical reason behind a state not buliding a road or not teaching its citizens. The reason the state took this up in the first place was because it needed to be done and it communal project. Policing is also such a communal project that needs to be done, but I doubt you'll say that the states shouldn't police their citizens. Do you see in the federal constitution some place where these two state functions were precluded? Do the state constitutions, including some from the 18th century, preclude the state government from conducting such duties? I really would like you to explain some legal justification for your consistent diatribes against the government fulfilling its responsibility. If you can't provide it, I would appreciate it if you would no longer make such statements that are off-topic and are policy issues not to be discussed on a legal blog.
Noah
While I'm certainly not opposed to privatizing some of these functions, I suspect that it would not help the tendancy of local government towards self-importance, and I'm sure they would find ways to assert themselves even if Gray worked for them by proxy rather than directly.
Lastly, I think Noah confuses the question of whether government CAN undertake such works (and, indeed, _which_ governments) and whether they SHOULD. I don't think that anyone denies that, in general, state constitutions authorize state and local government to undertake such projects; the argument is that government should excercise that power through contracting rather than hiring its own workforce.
I'll second Noah's off-topic points regarding the privatization issue, and add some related off-topic points of my own. While there are certainly some benefits to privatization, there are also substantial unintended costs.
- The bidding process for government contracts creates conflicts of interest and opportunities for graft. Government interactions with concentrated economic interests should be minimized. Corruption creates waste, but also, more importantly, destroys trust in the basic fairness of the economic system.
- Bidding is rarely competitive and contracts are often awarded on non-price factors (maybe this overlaps with my previous point).
- Privatization by contract bidding tends to give rise to monopolies / oligopolies which, in turn, exploit their market power to extract surplus from the taxpayer. Examples: Waste Managment, Halliburton, defense contractors, etc.
- The operational efficiency of the private sector relative to the public sector is a persistent myth -- there is waste in pretty much any bureaucracy, it's just that the government is much more visible and transparent than, say, IBM.
While I appreciate the impulse to reduce government's size, some goods are optimally provided by government. Do you really think outsourcing of a large part of military logistics has either a) improved efficiency from the taxpayers perspective or b) improved military efficacy?
Jenkins:
Justin:
Admittedly, Professor Bernstein doesn't seem to share Justin's view, but he thinks we'd all be better off if Mike Gray worked for a privatized Public Works, where'd he'd likely be subject to the same restictions, at minimum. Unfortunately, there would be neither more lor less speech restriction in the world (or, as Jenkins admits, even in government), though Gray's case would be less justiceable. Absent any external arguments on the costs and benefits of private delivery of public goods, how does this, in and of itself constitute "another reason to support privatization of peripheral government functions"?
1. To call building of roads and sidewalks etc "peripheral" suggests ignorance of the critical economic value of transportation infrastructure.
2. To be unaware that in many jurisdictions the actual construction should be "privatized" demonstrates ignorance of how things are actually done as in most uyrban areas the work is bid. Usually the governmental staff does only maintenance and small projects.
3. To think that decison-making (about which roads, sidewalks etc etc are to be developed and in what order etc etc) could be done by a non-governmental organization is naive and even funny. Maybe we should privatize the courts as well.
But his remark sure does offer grist for comments!
Government control of speech is inherently evil. Government offering employment to bigots and insulating them from the market's disapproval of their bigotry is also inherently evil. Thus, to the extent that we have government employees, there will necessarily be some evil afoot. That evil can be minimized by minimizing government employment. That's true even if the result would be substantively the same with a private employer. Government control of speech raises unique moral issues.
If the problem with these speech restrictions is that they are arguably content-based, why should we be any less suspicious of a government's decision to outsource speech regulation is itself driven by a desire to disable particular content.
Thank you. I'll refrain from further comment until I've read the selections.
"States were involved in education in the 18th century. States were involved in public works in 18th century. ... Why is that not a basic function of government?... The reason the state took this up in the first place was because it needed to be done and it communal project. Policing is also such a communal project that needs to be done, but I doubt you'll say that the states shouldn't police their citizens."
Don't forget that states also ran the Post Office. But as with education and public works, these functions, while crucial, can be done by the state or under contract by private parties. Indeed, as has been pointed out, most major road projects are already contracted out. There are various costs and benefits to having these functions run by government, or instead run by (presumably regulated) private actors. One of the costs of having the government run most things is that we then have a single large employer essentially monopolizing all hiring and firing decisions. This power only becomes complete as the government approaches 100% of jobs, but someone trained in a field like road engineering (or teaching, etc.) can also be effectively at the mercy of even a moderate sized government.
The police function differs in that it is far more crucial that government maintain the monopoly of force and the criminal justice system. The current hierachy above the police on the street ends with an elected official. Accountability would be far harder to come by if it effectively ended with the CEO of, say, Halliburton. Although Halliburton would have incentive to keep its contract, the history of corporate / company-town police forces is not very reassuring.
Seems a reasonable workout.
It seems the protagonist is being a bit of a silly person himself:
Why do so many have to make a federal case out of everything.
my initial reaction was that this was a silly claim against the government as employer. without getting into the technicalities of the doctrine, one of the major focuses of the inquiry (i posted the relevant upcoming 5th circuit en banc case above) is whether the speech regulation is aimed at securing the government facility's neutral purpose. in the fifth circuit case it is a very live issue as to whether a hospital can keep an electrician from wearing a "union up" pin on the grounds it could create the impression of disorder at a hospital.
let's repeat how much more severe this is: the guy works at a public works department, likely with many hispanics who have family, and is garbed in paraphenelia that a reasonable person could quite honestly believe to be constitute a deportation threat.
if it's unclear whether the 1st amendment requires the hospital to allow the electrician to wear the "union up" pin, i don't see this case as even close.
All of these are troubling and I find the 'matter of public concern' doctrine extremely troubling. Not only is it a direct invitation for judges to insert personal judgements and biases but it is inherently discriminatory to minority viewpoints. A viewpoint is minority often because people think it is absurd or unimportant and this standard basically allows the government to clamp down on such speech by employees (I suspect in the south in a past century making fun of slaveholding would not have been deemed a matter of public concern and I imagine mocking religion would be treated similarly today). Given the large number of people now working for the government this is indeed troubling.
However, this case doesn't even rise to the level of serious concern. The individual in question appears to only being asked to change his speech on the job and job property. Unlike a union pin there is no good reason why the speech must be made on the job and whether or not you agree with the governments position there are clear reasons to restrict this speech over and above the particular views of management or the administration.
The "threat" amounts to, "I will snitch to the INS if I find out you're breaking the law." How is that speech less protected than any other kind? Leaving aside confidentiality issues, can state governments require employees not to report federal crimes to the federal government?
What about what Enoch says "se hable espanol"?! Are "English Speaking Americans" being harrassed when we see a sign that says this?
Implying that most Hispanics are here illegally? That's not accurate. What an odd prejudice indeed.
Btw, I have had crews on a job site who didn't speak English and it was a big mistake and I will never do it again. Even if they can do the work well, little things (like where to park their cars) become a big deal. That's why this post resonates with me as I will never ever hire labor again in which I am not sure that at least one perosn speaks very good English. (Btw, these crews came on the job as labor provided by a subcontractor who was a native English speaker so it didn't occur to me think of his workers.)
Why on earth?
Privatize those functions because it gives the government fewer occasions to exercise said censorious powers. It wouldn't make First Amendment law any less complicated given that there must always be some core government employees.
Concomitantly, it gives private industry more occasions to exercise said censorious powers. I don't see any reason to think that public-works supervisers will become wiser by virtue of receiving their paychecks from a private-sector bank account.
This situation is a laughable illustration of how thin-skinned and pathetic we've become.
I agree that it's laughable, but I have a hard time generalizing from isolated horror stories in the press of this sort to conclude that we're all "thin-skinned and pathetic," when I don't encounter behavior of this sort. If this interwebs technology is good for anything, it is showing us all very quickly human behavior best not shown. That we see it more often doesn't necessarily mean it's happening more often.
It should be done delibertately, with calculation. And threatening criminals with being reported to the law most assuredly SHOULD be protected speech.
I personally interpret this as racist...
Of course, an "english speaking American" would include blacks, American Indians, Indian immigrants who are US citizens, and other immigrants who speak English and have their citizenship...
It would exclude illegal immigrants, etc.
So it is not really "racist"...
Even contracting out has its own problems. At least at the federal level, you have elaborate measures meant to ensure you take the lowest bid and don't play favorites. So the goods have to be precisely defined ... down to thickness of the sheet metal on a filing cabinet... so that everyone is bidding on the same thing.
In that setting, again, there is no role for market disapproval of bigotry. Unless maybe you figure out, in advance, every way in which bigotry might be displayed and forbid it in the proposal being bid on. Given that bigots can be rather imaginative, you're apt to wind up with first amendment violations that way (and at the least require a team of con lawyers to draw up the contract).
Speaking of imagination--the hat is quite an illustration! We know exactly what he was trying to do ... but it's sort of hard to pin down a good reason for forbidding a fellow to mention a government law enforcement agency! Is the county to forbid all law enforcement hats, all government hats, or to announce that Border Patrol is somehow uniquely intimidating or despicable?
(I suspect that the answer should be more along the lines of no LE hats for the reason that people should not give the false impression they are LE. There are statutes against impersonating an officer, after all. That hat doesn't say "I love the Border Patrol," but rather suggests that the wearer IS a member of the BP.)
"That evil can be minimized by minimizing government employment. That's true even if the result would be substantively the same with a private employer."
If the evil lies in trying to censor a person, even a bigot, then what is the difference if a private firm or the government does the same thing. Both are censoring speech. The difference is that the government has the all legitimate use of force and a private company does not. Yet this is exactly why we separated executive, legislative and judicial funcitions. Therefore, the judiciary theoretically treats the private company and the executive branch the same. Actually, in practice, we all know that the judiciary is harder on the government than it is on the private company, because of the first amendment. This is why I brought up the off-topic remark. Where is the proof that the government censoring this speech is more harmful than private industry doing so? And if there is no proof why is it necessarily an example of why the government should privatize every "peripheral" government operation? In fact, more to the point, what does this case have to do with privatizing social services function of the state government?
Noah
but it's nice to see that you aren't letting your political preferences get trumped by the fact that this guy does not work for law enforcement, much less the border patrol, and that you now all seem to concede that his employer seems to be resonded to what they perceive as a threat.
no, no - you're just smugly content that you think the threat is justified. well, i think illegal immigrants should be deported to. but i don't think that they should be subject to threats or extortion from private citizens presenting themselves as border patrol. nor do i think its appropriate to threaten legal immigrants with deportation of potentially illegal family members. none of that matters, because it's not actually the point. the point is that the public works department is responding to a perceived threat.
Since when did wearing a baseball cap indicate that the wearer is representing himself as part of the organization. And how did I miss the "threat or extortion." Now I realize that I should have never given my father a US Navy cap. He's clearly threatening violence by association with the military. Great point about the "se habla espanol" hypo. Neither "side" should see this as a threat or validate it with any official reaction. If the sign advertized "not a 'spic'" or the hat read "Immigrants, shoot first..." then action would be warranted. I'm offended by the values of professional sports so that "Red Sox" cap pricks my thin skin.
huh? the guy is works for the government, is wearing a border patrol hat, and wears a sign that says "english first."
i think your analogy to the red sox would work a little better if in addition to wearing your sox hat you were fat, couldn't play left field, demanded trades every two months, and still didn't know the directions to fenway even though you've played there for five years.
seriously, i'm not saying the cap makes anything a threat. i'm saying that wearing the cap in conjuction with other things you are wearing and in conjunction with your job and in conjunction with the general message your attire seems to be conveying could be interpreted by coworkers and customers as a threat, and that the potential threat (which is conduct, not speech) is the basis of the regulation/discipline, not the message.
I guess I'm still lost on how a reasonable person would see this as serious or a threat. I didn't read anything about a badge or gun or spoken threats. Maybe I've just seen too many people wearing government agency hats and realize that in blue collar work people wear lots of hats unrelated to their current job.
Let's say he knows/suspects coworkers occasionally smoke pot on lunch breaks. No FBI hat? Ridiculous.
yes you probably have a better perspective because you've done more work with blue collar types than i have.
ok dude, seriously, enough with the bad analogies. i don't think the guys boss is interceding on behalf of illegal immigrants. i think he's doing so on behalf legal ones.
because he's at work, which happens to be as an employee for the government. he can where whatever the hell he wants on his own time.
(1) In response to the County, Gray offered to stop wearing the BP hat and to cover the sign on the truck so that it said only "English speaking American". The county did not consider that sufficient.
(2) Was any consideration given to who was complaining? Did other county workers complain? If so, how many? How do you evaluate the hostility of a message unless you make at least some effort to ask the presumably offended parties what they think?
Besides, the WASP businessman from Sheboygan and the African-American granny from Detroit are nowhere near as likely to be hassled by an INS/BP agent to demonstrate their legality as a perfectly legal Latino.
Surely you'll concede that being scrutinized and possibly having to verify one's legality IS a hassle? Not that I agree that the limitations should be placed on this guy because I don't ... just because I don't agree with the other side of the coin does not invalidate its arguments.
Actually, whether someone is subject to deportation is a confusing legal issue. Of course all legal immigrants may be deported. So may many legal immigrants. So your premise that this is only a threat agianst illegal immigrants is somewhat naive.
I'm not answering that silly question. You know what the threat is. If you have a point to make about why the threat shouldn't be regulated, or why what I've argued is a threat is actually not one, say it. But don't cop out.
I'm willing to concede the implicit threat in wearing the border-patrol hat. But a sign that reads "Lawn Services Done With Pride!! By An English Speaking American" conveys no such threat. The county could demand the he not wear the hat to work without making him cover up the sign. Without the hat, what threat does the sign pose?
Nothing. I have no objection to the sign without the hat. I just found it strange that everyone was stomping their feet about how this was just about "offending" people. I think that after the hat and the sign were noted, when the guy tried to retreat to a position that would have been defensible if it would have been the case BEFORE the initial problem, the response was sort of a reactionary "no dice."
As a constitutional matter, and I think as most people acknowledge, whatever our personal opinions about whether the government as employer SHOULD be able to regulate even the sign-only behavior, they can.
As I understand it, the attorney general is/was on the board of La Raza, an organization dedicated to promoting the interests of, well, the Race . Can I as an Anglo have confidence in Gonzales? Can I have confidence in any public employee that belongs to any ethnic pressure group?