Washingtonienne law:

A reporter called to interview me about this incident’s legal dimensions, and now that the reporter’s story is out, I thought I’d share the legal analysis here.

A brief sketch of the legal question (yes, I know, it’s almost self-parody to reduce this whole thing to the legal issue, but I write about what I know), at least based on the facts as I’ve seen them reported: Anonymous Senatorial aide blogs about her sex life, including what seems like her being paid for sex. She does not use any names. Someone finds out and blows the whistle to her boss. The boss fires her. First Amendment violation?

Here’s the general rule for the First Amendment protections that government employees have against their employers (including Senators). The first four items are ways that speech might lack constitutional protection, which is to say that the government employer would be free to fire the employee. The fifth is a summary of when the speech is protected:

1. If the employee is in a policymaking position (e.g., a high government official), or perhaps some other position where tight control over the person’s speech is important (e.g., possibly a close advisor to a politician), then the employer has virtually unlimited power to fire the employee based on her speech. If Washingtonienne had been a high-level staffer, or even a mid-level staffer, she might therefore be firable under any conditions. If she’s just a secretary or a gopher, though, she might have some First Amendment rights. What if she was a low-level staffer, but had some responsibility for advising the Senator, even through superiors, on certain political subjects? Hard to tell what the rule would be.

2. Employees have no free speech rights when speaking on behalf of the government or their government employers. If Washingtonienne had included this stuff in the Senator’s newsletter, she would have been eminently firable. But she didn’t, so this item doesn’t apply to our case.

3. There’s generally no First Amendment problem when an employee is fired based on speech on matters of purely “private concern,” a fairly expansive category that includes even complaints about one’s own job conditions (though one might think that these are of public concern, since they may involve inefficiency at a government office, they are generally treated as being merely of private concern for purposes of this test).

   Washingtonienne’s speech would almost certainly be treated as being on a merely “private concern” (I know there are counterarguments, but I’m quite confident of this prediction), and she would thus be firable for it. However, a recent Ninth Circuit decision suggests that this prong shouldn’t apply for off-the-job speech, so that even private-concern off-the-job speech should generally be constitutionally protected (subject to the other items I mention here). If that decision is accepted more broadly (I can’t predict whether it would be), then Washingtonienne might not be punishable under this prong.

4. Even when the employee’s speech was on a matter of public concern, she may still be fired if the potential damage that the speech caused to the effectiveness of the office — in distraction, lost morale, interference with working relations, coworkers’ loss of confidence in the speaker, lost confidence on the public’s part, and such — outweighs the value of the speech to the speaker and the listeners. How does one weigh such incommensurable elements? How does one even quantify them? Impossible to tell exactly, but that’s what courts are supposed to do. And in this case, the constitutional value of the speech (under the Court’s caselaw) seems so low that the potential damage to the office — once, of course, Washingtonienne’s identity was revealed to her officemates, and inevitably to the public, even if she hadn’t been fired — is sufficient to justify firing her.

   Note that if the speech is done on employer time or employer property, this is one factor that cuts against the employee in the balance. If the speech violates a preexisting employer rule, that’s another. But neither factor is dispositive (see Connick v. Myers [1983]).

   Thus, half of the stated reason for the firing — that the “employee had been using Senate resources and work-time to post . . . material to an Internet Weblog” — doesn’t categorically dispose of the First Amendment question. (If there really were an across-the-board rule that one can’t use work computers for personal purposes, that would strengthen the employer’s case; but I highly doubt that there was such a rule in practice, since I suspect that at least personal e-mail from work computers is generally allowed, and probably posting things to Web sites might be, too.) Rather, it’s the point that I replaced with an ellipsis in the quote before — that she was “post[ing] unsuitable and offensive material,” and that this speech is of purely private concern and in any event is likely to harm the effectiveness of the office — that should doom any First Amendment defense she might raise (and note that I have no reason to think that she would try to raise it).

5. The above are all ways in which speech might lack First Amendment protection against the government as employer: The employee may be fired for it, though not necessarily fined or sued or jailed for it. If none of these apply, though — if the employee was (1) a non-high-level employee (2) speaking on her own behalf (3) on a matter of public concern and (4) the disruption caused by the speech does not outweigh the value of the speech — then the employee cannot be fired or demoted for the speech.

But wait, there’s more — and this may be dispositive, if this were the true reason for the firing. (The official statement doesn’t give this as a reason, but I suspect that it might indeed be a big part of the reason.) All the analysis above applies when the government punishes speech simply because the employer doesn’t like the speech, or thinks the speech will interfere with the smooth functioning of the office or the office’s public profile. Speech, though, can generally be used as evidence of what someone has done (even in criminal cases) with no First Amendment problem.

So if the staffer was fired because she engaged in prostitution (or the employer reasonably thought, based on her speech, that she engaged in prostitution), then there’s no First Amendment problem at all, even though the way the employer found out about the prostitution was indirectly through her blog.