From: Tim May <tcmay@got.net>
Date: Sat, 20 Dec 1997 02:57:44 +0800
To: cypherpunks@Algebra.COM
Subject: Re: Freedom Forum report on the State of the First Amendment
In-Reply-To: <v03007800b0bf50ceed20@[207.172.112.244]>
Message-ID: <v03102800b0c060db7d2e@[207.167.93.63]>
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At 10:45 AM -0700 12/19/97, David Honig wrote:

>The issue is confounded in the anecdote because the employer is government
>in this case,
>and we might expect government to be obligated to hire and fire only on the
>basis of merit.  In a *free* world *employers* can fire for speech;
>government can't
>interfere in speech.

Yes, this was my main point, that when viewing government AS AN EMPLOYER
there are things that government employer can do which would not be
permissable, constitutionally, for the government to do to ordinary
citizens. It can tell employees what clothing to wear (uniforms, dress
codes), it can tell employees where they must be at what times, and it can
even tell classes of employees what they may say even when not "on the job."

(Without getting into nitpicking, there are rules restricting what
employees of the military, for example, may say about political candidates.
Does this restrict their First Amendment rights? Not if they agreed to
these restrictions, as they did when they joined the military.)

And the government as an employer has all sorts of abilities to fire
employees who speak out of line. If the Secretary of State announces she is
now supporting a Republican candidate for President, does not President
Clinton have every right to can her? Or if the Director of the FBI
announces he has proof that Martians are beaming signals into his
fillings....

And employees of the NSA may be fired if they divulge information.

Or imagine a senior White House official announcing that Christianity is
sinful...are his religious freedoms being infringed upon if the President
fires him? How about if he was making his comments "after hours"? It makes
no difference.

And so on, for many such examples. None of these actions, in my view (and
apparently in the view of the courts, which have not thrown out such
government-as-employer rules), are violations of the First Amendment, or
any other amendments.

Some employees of the government may have employment contracts or union
contracts, and these may define the circumstances under which employees may
be fired, or disciplined, or told what they can say.

Now it may not be _smart_ of some government agency to try to restrict the
off-the-job speech of military personnel, NSA employees, or Department of
the Interior forest rangers, but the issues are not compelling First
Amendment issues.

The government AS EMPLOYER has the ability to impose restrictions on
employees, as all employers do, that are fundamentally different from the
restrictions government can impose on free citizens.

>In the US today, employers do not have that freedom.  Government outlaws
>employers freedom to hire and fire ---except against recreational
>pharmaceutical consumers--- and the populace considers this permissible in
>the name of harmony.

Indeed, we are moving away from "liberty" toward "fraternity" as the
cornerstone of our society.

>If one ever questions this in public, as Tim did, the liberal response is
>to show that
>unPC 'discrimination' is possible if humans are free, and then the dutiful
>citizen gladly sacrifices employers' liberty for their warm and fuzzy
>feelings.
>
>The first amendment is about what government can't do to you, not what your
>neighbor can or can't do.

Agreed, except that I would add that the Constitution doesn't preclude the
government, as an employer, from setting rules for its employees.

Even in George Washington's day, I'm sure if one of the White House's
servants announced that it was his constitutional right to say whatever he
pleased and to wear whatever he pleased and to pray to Baal 10 times a day,
that no one would take him seriously.

(Perhaps a Supreme Court clerk can begin speaking only in Urdu, and then
when he is fired he can file a lawsuit claiming his First Amendment rights
were violated?)

--Tim May

The Feds have shown their hand: they want a ban on domestic cryptography
---------:---------:---------:---------:---------:---------:---------:----
Timothy C. May              | Crypto Anarchy: encryption, digital money,
ComSec 3DES:   408-728-0152 | anonymous networks, digital pseudonyms, zero
W.A.S.T.E.: Corralitos, CA  | knowledge, reputations, information markets,
Higher Power: 2^2,976,221   | black markets, collapse of governments.
"National borders aren't even speed bumps on the information superhighway."