The Volokh Conspiracy

I've pointed out before that there have been relatively few governmental restrictions on antiwar and anti-Administration speech over the past five years; and I still think this is so. Nonetheless, here's an incident that strikes me as quite troubling.

In September 2005, a nurse with the Department of Veterans Affairs wrote a letter to an Albuquerque alternative newspaper (the Weekly Alibi) that stridently denounced the Administration; I reproduce it below:

Dear Alibi,

I am furious with the tragically misplaced priorities and criminal negligence of this government. The Katrina tragedy in the U.S. shows that the emperor has no clothes! Bush and his team partied and delayed while millions of people were displaced, hundreds of thousands were abandoned to a living hell. Thousands more died of drowning, dehydration, hunger and exposure; most bodies remain unburied and rotting in attics and floodwater. Is this America the beautiful?

The risk of hurricane disaster was clearly predicted, yet funds for repair work for the Gulf States barrier islands and levee system were unconscionably diverted to the Iraq War. Money and manpower and ethics have been diverted to fight a war based on absolute lies!

As a VA nurse working with returning OIF vets, I know the public has no sense of the additional devastating human and financial costs of post-traumatic stress disorder; now we will have hundreds of thousands of our civilian citizens with PTSD as well as far too many young soldiers, maimed physically or psychologically -- or both -- spreading their pain, anger and isolation through family and communities for generations. And most of this natural disaster and war tragedy has been preventable ... how very, very sad!

In the meantime, our war-fueled federal deficit mushrooms -- and whither this debt now, as we care for the displaced and destroyed?

Bush, Cheney, Chertoff, Brown and Rice should be tried for criminal negligence. This country needs to get out of Iraq now and return to our original vision and priorities of caring for land and people and resources rather than killing for oil.

Katrina itself was the size of New Mexico. Denials of global warming are ludicrous and patently irrational at this point. We can anticipate more wild, destructive weather to occur as a response stress of the planet. We need to wake up and get real here, and act forcefully to remove a government administration playing games of smoke and mirrors and vicious deceit. Otherwise, many more of us will be facing living hell in these times.

Now the nurse has seemingly gotten into trouble with the VA, apparently on the grounds that the VA suspects that the letter may have been composed on a work computer. According to the Alibi, "[Berg's lawyers] say that a few days after the letter was published, VA Information Security employees seized Berg's computer at the local VA hospital where she works. At the time, she was told this action occurred because of suspicions that she'd composed the letter to the Alibi on government time, on government premises, using government equipment. According to Bach and Kronen, on Sept. 19, 2005, Berg's American Federation of Government Employees Union representative, Thomas Driber, informed Berg that her letter to the Alibi had been sent through 'VA channels' to the FBI in Washington, D.C. The attorneys say this information was confirmed by one of the union's Washington lawyers during a conference call between Driber, Berg and the union lawyer. (Multiple phone messages left at Driber's office by the Alibi were not answered.)"

What most concerns me is the response of the Chief of the Human Resources Management Service at the VA; in relevant part, it says (emphasis added; I quote from a fax of the memo written by the Chief):

In your letter to the Editor of the Weekly Alibi, you declared yourself "as a VA nurse" and publicly declared the Government which employs you to have "tragically misplaced priorities and criminal negligence" and advocated, "act forcefully to remove a government administration playing games of smoke and mirrors and vicious deceit." The Agency is bound by law to investigate and pursue any act which potentially represents sedition. You are reminded that Government equipment is just that, and the Government may apprehend, investigate, use, or permit the use of such at its discretion and direction.

Sedition? As my dictionary puts it, "Conduct or language inciting rebellion against the authority of a state"? Here a citizen is condemning the government and calling for it to be tried, and this is somehow "inciting rebellion"? Please. Either this is a wild overreaction (perhaps based on an unreasonable misreading of "forcefully" as "forcibly," where in context it simply means "effectively">), or -- worse still -- this is a federal bureaucrat treating harsh criticism of the government as somehow criminal. As a First Amendment matter, the letter to the editor is likely protected even against the government acting as employer: It's on a matter of public concern, and I highly doubt that such a letter would so interfere with the effectiveness of the nurse's workplace that this interference would outweigh the First Amendment value of the letter to its writer and to its readers (that's the relevant First Amendment test when the government is acting as employer). Even if it was written on a work computer, which apparently may not be the case here, most government workplaces in practice tolerate light uses of work computers for personal conduct (e.g., sending a personal e-mail, or composing a personal letter). If that's so here, as seems very likely, then concern about supposed misuse of computer resources seems to be just a screen for government bureaucrats trying to suppress arguments that they find offensive.

What's more, talk of "sedition" helps show that the government official's true concern was about advocacy of views he dislikes, and not about control of government equipment -- "sedition" is the name of a crime against the government as sovereign, and not just a subspecies of misuse of government property by a government employee that's punishable by reprimand or firing. And the talk of "sedition" also shows that this particular official has forgotten James Madison's point that "If we advert to the nature of Republican Government, we shall find that the censorial power is in the people over the Government, and not in the Government over the people."

Fortunately, it appears that the nurse has not lost her job, and has gotten her computer back. But I think the incident should make us wonder whether the Chief of the VA Human Resources Management Service is doing his job properly, and with the proper understanding of how the government is constitutionally bound to operate.

Thanks to reader J.D. Knoll for the pointer.

	[Eugene Volokh, February 13, 2006 at 5:59pm] Trackbacks Sedition! I've pointed out before that there have been relatively few governmental restrictions on antiwar and anti-Administration speech over the past five years; and I still think this is so. Nonetheless, here's an incident that strikes me as quite troubling. In September 2005, a nurse with the Department of Veterans Affairs wrote a letter to an Albuquerque alternative newspaper (the Weekly Alibi) that stridently denounced the Administration; I reproduce it below: Dear Alibi, I am furious with the tragically misplaced priorities and criminal negligence of this government. The Katrina tragedy in the U.S. shows that the emperor has no clothes! Bush and his team partied and delayed while millions of people were displaced, hundreds of thousands were abandoned to a living hell. Thousands more died of drowning, dehydration, hunger and exposure; most bodies remain unburied and rotting in attics and floodwater. Is this America the beautiful? The risk of hurricane disaster was clearly predicted, yet funds for repair work for the Gulf States barrier islands and levee system were unconscionably diverted to the Iraq War. Money and manpower and ethics have been diverted to fight a war based on absolute lies! As a VA nurse working with returning OIF vets, I know the public has no sense of the additional devastating human and financial costs of post-traumatic stress disorder; now we will have hundreds of thousands of our civilian citizens with PTSD as well as far too many young soldiers, maimed physically or psychologically -- or both -- spreading their pain, anger and isolation through family and communities for generations. And most of this natural disaster and war tragedy has been preventable ... how very, very sad! In the meantime, our war-fueled federal deficit mushrooms -- and whither this debt now, as we care for the displaced and destroyed? Bush, Cheney, Chertoff, Brown and Rice should be tried for criminal negligence. This country needs to get out of Iraq now and return to our original vision and priorities of caring for land and people and resources rather than killing for oil. Katrina itself was the size of New Mexico. Denials of global warming are ludicrous and patently irrational at this point. We can anticipate more wild, destructive weather to occur as a response stress of the planet. We need to wake up and get real here, and act forcefully to remove a government administration playing games of smoke and mirrors and vicious deceit. Otherwise, many more of us will be facing living hell in these times. Now the nurse has seemingly gotten into trouble with the VA, apparently on the grounds that the VA suspects that the letter may have been composed on a work computer. According to the Alibi, "[Berg's lawyers] say that a few days after the letter was published, VA Information Security employees seized Berg's computer at the local VA hospital where she works. At the time, she was told this action occurred because of suspicions that she'd composed the letter to the Alibi on government time, on government premises, using government equipment. According to Bach and Kronen, on Sept. 19, 2005, Berg's American Federation of Government Employees Union representative, Thomas Driber, informed Berg that her letter to the Alibi had been sent through 'VA channels' to the FBI in Washington, D.C. The attorneys say this information was confirmed by one of the union's Washington lawyers during a conference call between Driber, Berg and the union lawyer. (Multiple phone messages left at Driber's office by the Alibi were not answered.)" What most concerns me is the response of the Chief of the Human Resources Management Service at the VA; in relevant part, it says (emphasis added; I quote from a fax of the memo written by the Chief): In your letter to the Editor of the Weekly Alibi, you declared yourself "as a VA nurse" and publicly declared the Government which employs you to have "tragically misplaced priorities and criminal negligence" and advocated, "act forcefully to remove a government administration playing games of smoke and mirrors and vicious deceit." The Agency is bound by law to investigate and pursue any act which potentially represents sedition. You are reminded that Government equipment is just that, and the Government may apprehend, investigate, use, or permit the use of such at its discretion and direction. Sedition? As my dictionary puts it, "Conduct or language inciting rebellion against the authority of a state"? Here a citizen is condemning the government and calling for it to be tried, and this is somehow "inciting rebellion"? Please. Either this is a wild overreaction (perhaps based on an unreasonable misreading of "forcefully" as "forcibly," where in context it simply means "effectively">), or -- worse still -- this is a federal bureaucrat treating harsh criticism of the government as somehow criminal. As a First Amendment matter, the letter to the editor is likely protected even against the government acting as employer: It's on a matter of public concern, and I highly doubt that such a letter would so interfere with the effectiveness of the nurse's workplace that this interference would outweigh the First Amendment value of the letter to its writer and to its readers (that's the relevant First Amendment test when the government is acting as employer). Even if it was written on a work computer, which apparently may not be the case here, most government workplaces in practice tolerate light uses of work computers for personal conduct (e.g., sending a personal e-mail, or composing a personal letter). If that's so here, as seems very likely, then concern about supposed misuse of computer resources seems to be just a screen for government bureaucrats trying to suppress arguments that they find offensive. What's more, talk of "sedition" helps show that the government official's true concern was about advocacy of views he dislikes, and not about control of government equipment -- "sedition" is the name of a crime against the government as sovereign, and not just a subspecies of misuse of government property by a government employee that's punishable by reprimand or firing. And the talk of "sedition" also shows that this particular official has forgotten James Madison's point that "If we advert to the nature of Republican Government, we shall find that the censorial power is in the people over the Government, and not in the Government over the people." Fortunately, it appears that the nurse has not lost her job, and has gotten her computer back. But I think the incident should make us wonder whether the Chief of the VA Human Resources Management Service is doing his job properly, and with the proper understanding of how the government is constitutionally bound to operate. Thanks to reader J.D. Knoll for the pointer.