• Government Dumps on First Amendment

    August 10, 2012

    Tags: , , , ,
    Posted in: Democracy, Embassy/State

    Jess Radack wrote this, with some added info in italics by me for ya’:

    The Washington Post has an article on how Daniel Carter Jr. was fired for “liking” a page on Facebook. This was not a pornographic, racist, or other prohibited website – it was a Facebook page for a candidate who was challenging his boss.

    This is just the tip of the iceberg of workplace free speech rights. I represent a client, State Department whsitleblower Peter Van Buren, who was not only prohibited from using any social media – on his own time, on his personal computer – but the State was actively monitoring anything he did: blog, Tweet, update his status of Facebook, etc. (here’s the letter the State Department compelled me to sign acknowledging they would be violating my First Amendment rights)

    Both Carter and Van Buren’s behavior is protected free speech (the ACLU aggressively defended my First Amendment rights in front of the State Department).

    Carter filed a lawsuit claiming that his First Amendment rights had been violated, which is now before the U.S. Court of Appeals for the 4th Circuit. Both Mr. Carter and Mr. Van Buren’s “speech” raise substantial constitutional questions and create the appearance of impermissible retaliation for their criticism – Carter’s so tacit that you can’t even call it “criticism,” and Van Buren’s more open – of the head of the sheriff’s department and the State Department, respectively.

    The Supreme Court has made clear (Pickering v. Bd. or Educ., 1960 and its progeny) that public employees are protected by the First Amendment when they engage in speech about matters of public concern. These rights can be overcome only if the employee’s interest in the speech is outweighed by the government’s interest in the orderly operation of the public workplace and the efficient delivery of public services by public employees.

    The Supreme Court has also held that public employees retain their First Amendment rights when speaking about issues directly related to their employment, as long as they are speaking as private citizens (Garcetti v. Ceballos, 2006). It is clear in both these cases that both Mr. Carter and Mr. Van Buren were “speaking” in their own voice and not on behalf of the local Police Department or the federal State Department.

    (The State Department is the most aggressive violator of social media Free Speech rights of employees in the Federal sphere)

    If the lower court’s ruling that “liking” a page does not warrant protection because it does not involve “actual statements” is upheld, a plethora of Web-based actions – from clicking ‘like” on Facebook to re-tweeting something – won’t be protected as free speech.

    The Hampton, Virginia sheriff’s actions and the State Department’s actions are unconstitutional. Carter and Van Buren used various computer technologies to communicate matters of public concern – in Carter’s case, who is to be elected Sheriff, and in Van Buren’s case, the reconstruction effort in Iraq.

    As new technologies emerge daily, the law struggles to keep apace, but the First Amendment must be interpreted to protect these new modalities of communicating. As the ACLU points out:

    Pressing a ‘like’ button is analogous to other forms of speech, such as putting a button on your shirt with a candidate’s name on it.


    Jesselyn Radack is National Security & Human Rights Director for the Government Accountability Project, the nation’s leading whistleblower protection and advocacy organization.



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    Copyright © 2019. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

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  • Recent Comments

    • pitchfork said...

      1

      This stuff is becoming so preposterous, so absurd, so…phacepalm. I just wanna puke. But here is my best advice. Peter, all I can say is…get a grip and move. Shut up. Get over it. You can’t make a putrid turd into a rose. But what you CAN do..is find a life that makes you happy. Leave these people to die in their own urine, their own rotting flesh, their own putrescence mass. There is a place out there for joy. For love. For forgiveness. For self. Find it. They can’t.

      08/11/12 5:23 AM | Comment Link

    • Kyzl Orda said...

      2

      Maybe things are so preposterous because people *DO* cut and run. It’s easier to send people to Iraq and Afghanistan to fight for our freedoms. But guess what? This is *THE* fight. IT IS HERE, it’s this. How did our country get to this point? Thanks to not only the violators of our Constitution, but the people who keep quiet and their heads low, hoping ‘it won’t happen to ME.’

      The problem is if enough people hang their head low, the problem worsens because the violators get emboldened and think that was easy, whose going to dare get in my way??

      The fact that it is taking this long to fire Mr Van Buren means the war of attrition is on, because the arrogant people who are driving this did not think anyone would put up a fight and now are a little worried about their legacies because things have gone on the radar. They are hoping the leadership will cover for them. But these are the people who should be hounded out. In a way, we should be glad these chickens havent been sent to Afghanistan or Iraq but this is why Washington is a bloody mess. What are they here for? Their country or their career? People are giving up their lives to defend their country. Yeah, why not just flee and surrender, that will solve a whole lot, right?

      I can speak because I faced an excruciating situation when I was at State, encountering retaliation after raising concerns about canceling a key program in such a way that would have jeopardized Fulbrighters and their family members, stranding them in a third country because ‘nobody cared’ so I was told by a local supervisor at State. Two of us raised serious concerns about such an action.

      Consequently, when this stupid scandal broke, going worldwide, my colleague who raised concerns was thrown under the bus. Then I was shown the door, after the retal campaign proved ineffective. So much for a Department briefing in which then-pressperson claimed the Department doesnt engage in retaliation — apparently a few of our officials missed the Agency’s own briefings.

      I was offered money as well as told I wouldnt be able to work in anything connected to the Middle East or Central Asia, which are my fields. I said no, thanks. There ARE some things worth the cost of doing the right thing. I never had a hearing though I requested an Ombudsman

      If the boom is lowered, there *IS* life after being thrown off Mount Olympus. You CAN land on your feet. You can continue your career. Some people give their lives, others their job. If you take an oath – you honour it or dont go into this field because if you wind up in the wrong office, there are easier ways to collect a paycheck.

      Except for this last office, all the other offices I worked in at the Department were staffed with knowledgeable, talented people whose-give-a-damn meter worked. Thank God, because it gives one hope for our government and the future of our country

      08/11/12 12:46 PM | Comment Link

    • wemeantwell said...

      3

      Thanks gentlemen for the support. My struggle with State is in its final leg; I’ll have more when I can but pretty soon, for better or worse, I’ll be moving on.

      08/11/12 2:29 PM | Comment Link

    • jo6pac said...

      4

      Thanks to both of you for your efforts to make change and not becoming part of the problem.

      http://www.truthdig.com/report/item/the_careerists_20120723/

      08/11/12 6:08 PM | Comment Link

    • pitchfork said...

      5

      quote: ” So much for a Department briefing in which then-pressperson claimed the Department doesnt engage in retaliation —” BWAHAHAHAHAHAHAHAHAHAHA!!

      DOESN’T ENGAGE IN RETALIATION. BRILLIANT. JUST FUCKING BRILLIANT.

      note to self..file this one under:

      “…How to make Pigs fly in the face of reality at press conferences.”

      In fact, that’s almost as good as the one by Obombardier ..”WE DO NOT TORTURE” ..BWHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAH” What a fucking maroon.

      I assume ya’ll know..these buffoons take lessons in “how to keep a straight face when lying through your fucking teeth”((or HTKASFWLTYFT), which is a standard 1 day Seminar put on for all Fed Cartel people with one iota of “power” by the Department of Criminally Lying Bastards. In Oblivion’s case..he had to take it twice. Took Clinton THREE times and she still fails.
      But once they receive their HTKASFWLTYFT certificate..then they qualify for the “How to make your subordinates squirm and Retaliate in Style without even trying”..(or.”Tit for Tat”) seminar. Once certified..hell, even the First Amendment is a piece of cake! The only thing they don’t teach ya though..is how to look in the mirror without puking.

      08/12/12 2:38 PM | Comment Link

    • pitchfork said...

      6

      Deterrence theory and State

      From Wikipedia, the free encyclopedia.
      This article is about deterrent theories of punishment. For legal theory of justice, see Deterrence (legal).

      The use of threats as a means to deter subordinate employee crises has been a central topic of State security research for decades. Research has predominantly focused on the theory of rational deterrence to analyze the conditions under which conventional deterrence is likely to succeed or fail. Alternative theories however have challenged the rational deterrence theory and have focused on organizational theory and cognitive psychology.

      The concept of deterrence can be defined as the use of threats by State policy, to convince subordinate employees to refrain from initiating some course of action.[5] A threat serves as a deterrent to the extent that it convinces its target not to carry out the intended action because of the costs and losses that target would incur. In Department of State security, a policy of deterrence generally refers to threats of retaliation directed by Department leaders in an attempt to prevent attacking subordinate employees(ASE’s) from resorting to the use of media in pursuit of Whistleblowing State Department foreign policy failures.

      As outlined by Huth,[5] a policy of deterrence can fit into two broad categories being (i) preventing an media attack against the State’s own in house Policy’s (known as direct deterrence); or (ii) preventing an an attack against State acts (known as extended deterrence). Situations of direct deterrence often occur when there is a dispute between Leaders and Subordinates, in which the major leader(e.g. the Secretary of State) do not directly intervene. On the other hand, situations of extended deterrence often occur when failure of foreign policy acts becomes involved. It is the latter than has generated the majority of interest in academic literature. Building on these two broad categories, Huth goes on to outline that deterrence policies may be implemented in response to a pressing short-term threat (known as immediate deterrence) or as strategy to prevent short term public awareness (known as general deterrence).

      A successful deterrence policy must be considered in not only official reprimand terms, but also in employment terms. In reprimand terms, deterrence success refers to preventing subordinates from issuing Tweets, comments , personal blogs, books and actions that escalate public awareness of State leaders co-conspiratorial retaliation, into a crisis of MSM confrontation which threatens high positions of authority within State. The prevention of crises of media attention however is not the only aim of deterrence. In addition, defending State must be able to resist the potential MSM questioning. If total discovery of State leaders maleficence is avoided at the price of First Amendment concerns of Subordinates to the maximum demands of attacking MSM under the threat of Congressional Oversight , then it can be claimed that deterrence has succeeded.

      Furthermore, as Jentleson et al.[6] argue, two key sets of factors for successful deterrence are important being (i) a defending state strategy that firstly balances credible coercion and deft yet hidden retaliation threats, consistent with the three criteria of proportionality, reciprocity and coercive credibility, and secondly minimizes internal legal constraints; and (ii) the extent of an attacking Subordinate vulnerability as shaped by State’ employee’s recognition of signing their compliance agreement . In broad terms, a State Leader,l wishing to implement a strategy of deterrence, is most likely to succeed if the costs of non-compliance it can impose on, and the benefits of compliance it can offer to Subordinates are greater than the benefits of noncompliance and the costs of compliance.

      Deterrence theory holds that First Amendment rights elimination, are intended to deter Subordinates from attacking via books, blogs, tweets etc, through the promise of retaliation and possibly mutually assured destruction (MAD). MAD deterrence can also be applied to an attack by MSM; for example, the doctrine of massive retaliation against journalists by removing access to all State Department officials and functions.

      In order for a MAD deterrent to be successful, State must preserve its ability to retaliate either by responding before its own weapons are destroyed or by ensuring a second strike capability. A MAD deterrent is sometimes composed of a MAD triad, as in the case of the journalists owned by three competing MSM conglomerates…ie..access equals Weapons of Mass Media Destruction(WMMD), are juxtaposition-ed against each other through threat of Leak Access(LA) denial.

      Proportionality

      Jentleson et al.[6] provide further detail in relation to these factors. Firstly, proportionality refers to the relationship between State’s MAD defending scope and nature of the objectives being pursued, and the instruments available for use to pursue this. The more State demands of Subordinates, the higher Subordinate’s costs of compliance and the greater need for the defending State’s strategy to increase the costs of noncompliance and the benefits of compliance. This is a challenge, as deterrence is, by definition, a strategy of limited means. George (1991) [7] goes on to explain that deterrence may, but is not required to, go beyond threats to the actual use of employment loss retaliation; but if force is actually used, it must be limited and fall short of full scale use or otherwise it fails. The main source of dis-proportionality is an objective that goes beyond policy change to legal change. This has been seen in the cases of Peter Van Buren and others, where State has sought to change the legal compliance of a Subordinate in addition to retaliation policy relating primarily to Subordinate non compliance despite MAD reciprocity.

      Reciprocity

      Secondly, Jentleson et al.[6] outline that reciprocity involves an explicit understanding of linkage between State’s carrots and the ASE’s concessions. The balance lies neither in offering too little too late or for too much in return, not offering too much too soon or for too little return.

      Coercive credibility

      Finally, coercive credibility requires that, in addition to calculations about costs and benefits of cooperation, State must convincingly convey to the ASE, that non-cooperation has consequences. Threats, uses of force, and other coercive instruments (such as economic sanctions) must be sufficiently credible in order to raise the ASE’s perceived costs of noncompliance. State’s perceived superior TFT(Tit for Tat)capability or retaliatory strength in itself is not enough to ensure credibility. Indeed, all three elements of a balanced deterrence strategy are more likely to be achieved if other major internal actors (for example the Human Resources Dept.) are supportive and in opposition to subordinates within State’s/Others jurisdiction.

      The other important consideration outlined by Jentleson et al.[6] that must taken into consideration is the domestic political and economic conditions within the attacking subordinate life, affecting his vulnerability to deterrence policies, and the ASE’s ability to compensate unfavorable power balances. The first factor is whether internal and public political support, and possible Whistle blowing status are better served by defiance, or if there working condition gains to be made from improving relations with State. The second factor is a calculation of the economic costs and other coercive instruments can impose on ASE’s non compliance vs, the benefits that economic and other incentives may carry. This in part is a function of the strength and flexibility of the State’s capacity to absorb or counter the costs being imposed. The third factor is the elites and other key domestic political figures vulnerability to exposure of complicity in possible fraud, to the extent these actors’ interests are threatened with the ASE’s ability to prove accusations, as they will act to prevent or block possible public exposure by ASE’s Whistle blowing alleged proof.
      ………
      Reputations for resolve

      There are three different arguments that have been developed in relation to the role of reputations in influencing deterrence outcomes. The first argument focuses on defending State’s past behavior in international disputes and crises, which creates strong beliefs in a potential ASE about State’s expected behavior in future conflicts..aka Afghanistan. The creditability of defending State’s policies are arguably linked over time, and reputations for resolve have a powerful causal impact on an ASE’s decision whether to challenge either general or immediate deterrence. The second approach argues that reputations have a limited impact on deterrence outcomes because the credibility of deterrence is heavily determined by the specific configuration of retaliatory capabilities, interests at stake, and political constraints faced by an ASE in a given situation of attempted deterrence. The argument of this school of thought is that potential ASE’s are not likely to draw strong inferences about a State’s resolve from prior conflicts because potential ASE’s do not believe that a State’s past behavior is a reliable predictor of future behavior. The third approach is a middle ground between the first two approaches. It argues that potential ASE’s are likely to draw reputational inferences about resolve from the past behavior of State’s upper echelon only under certain conditions. The insight is the expectation that decision makers will use only certain types of information when drawing inferences about reputations, and an ASE updates and revises its beliefs when the unanticipated behavior of a
      State cannot be explained by case-specific variables.

      Interests at stake

      Although costly signaling and bargaining power are more well established arguments in rational deterrence theory, the interests of State are not as well known, and ASE’s may look beyond the short term bargaining tactics of a State and seek to determine what State interests are at stake that would justify the risks of First Amendment subjugation. The argument here is that State has greater interests at stake in a dispute, and will be more resolved to use retaliatory force and be more willing to endure credibility losses in order to secure those interests. Even less well established arguments are the specific interests that are more salient to State leaders such as Political Party/Corporate economic interests versus Leader credibility.

      Furthermore, Huth[5] argues that both supporters and critics of rational deterrence theory agree that an unfavorable assessment of the domestic and international status quo by state leaders can undermine or severely test the success of deterrence. In a rational choice approach, if the expected utility of not using retaliatory force is reduced by a declining status quo position, then deterrence failure is more likely, since the alternative option of using extreme prejudice retaliatory force becomes relatively more attractive.
      …….

      🙂

      08/12/12 4:54 PM | Comment Link

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