It’s true that, over the years, government in its many forms has tried to claim that you lose your free speech rights when you, for example, work for a
public school, or join the
military. In dealing with school administrators who sought to silence a teacher for complaining publicly that not enough money was being spent on academics versus athletics, or generals who wanted to stop enlisted men and women from blogging, the courts have found that any loss of rights must be limited and specific. As Jim Webb
wrote when still Secretary of the Navy, “A citizen does not give up his First Amendment right to free speech when he puts on a military uniform, with small exceptions.”
Free speech is considered so basic that the courts have been wary of imposing any limits at all. The
famous warning by Justice Oliver Wendell Holmes about not falsely shouting “Fire!” in a crowded theater shows just how extreme a situation must be for the Supreme Court to limit speech. As Holmes put it in his definition: “The question in every case is whether the words used… are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.” That’s a high bar indeed.
Does a newspaper article from November 2009, a few hundred well-reasoned words that
appeared in the conservative Wall Street Journal, concluding with these mild sentences, meet Justice Holmes’s high mark?
“Double standards don’t play well in Peoria. They won’t play well in Peshawar or Palembang either. We need to work to change the negative perceptions that exist about Guantanamo and our commitment to the law. Formally establishing a legal double standard will only reinforce them.”
Morris Davis got fired from his research job at the Library of Congress for writing that article and a similar
letter to the editor of the Washington Post. (The irony of being fired for exercising free speech while employed at Thomas Jefferson’s library evidently escaped his bosses.) With the help of the ACLU, Davis demanded his job back. On January 8, 2010, the ACLU
filed a lawsuit against the Library of Congress on his behalf. In March 2011 a federal court
ruled that the suit could go forward.
The case is being heard
this month. Someday, it will likely define the free speech rights of federal employees and so determine the quality of people who will make up our government. We citizens vote for the big names, but it’s the millions of lower-ranked, unelected federal employees who decide by their actions how the laws are carried out (or ignored) and the Cons ution upheld (or disregarded).
Morris Davis is not some dour civil servant. Prior to joining the Library of Congress, he spent more than 25 years as an Air Force colonel. He was, in fact, the chief military prosecutor at Guantánamo and showed enormous courage in October 2007 when he
resigned from that position and left the Air Force. Davis had stated he would not use evidence obtained through torture back in 2005. When a torture advocate was named his boss in 2007, Davis quit rather than face the inevitable order to reverse his position.
In December 2008, Davis went to work as a researcher at the Library of Congress in the Foreign Affairs, Defense and Trade Division. None of his work was related to Guantanamo. He was not a spokesperson for, or a public face of, the library. He was respected at work. Even the people who fired him do not contest that he did his “day job” as a researcher well.
On November 12, 2009, the day after his op-ed and letter appeared, Davis was
told by his boss that the pieces had caused the library concern over his “poor judgment and suitability to serve… not consistent with ‘acceptable service’” — as the letter of admonishment he received put the matter. It referred only to his op-ed and Washington Post letter, and said nothing about his work performance as a researcher. One week later, Davis was fired.
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