Speech speech

There are a couple of First Amendment issues of interest decided and looming in the First Circuit.

First, on the looming front, some campaign disclosure cases are in the news these days because argument is about to be heard on one before the Supreme Court.  (Arizona Free Enterprise v. Bennett, 10-239).  Appeals before the First Circuit are afoot as well.  On April 5, the First Circuit will be hearing two appeals by the National Organization for Marriage challenging aspects of Maine and Rhode Island campaign finance laws.  (NOM v. Daluz & NOM v. McKee).  GLAD and Common Cause of Rhode Island were granted leave to file an amici brief in the Rhode Island case, with Pierce Atwood representing GLAD.

Basically, NOM doesn't want to disclose information required under these states' laws about their funding sources, whether candidates authorized their ads and so on.  Just as the best cure for speech you don't like is more speech, fiat lux - disclosure in campaigns informs and educates the electorate. 

They should be interesting arguments and I look forward to attending.   

Second, the First Circuit just reversed a dismissal of a First Amendment action relating to a government employee.  Decotiis v. Whittemore [http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=10-1242P.01A]Congratulations to Zach Heiden of the MCLU who was on the brief for the appellant.  This is a very useful decision to read in this area, because it was a close case, and the court goes into some detail to explain why this one made it past the dismissal stage.  As the decision notes, "The instant case presents what may be a not uncommon scenario: a public employee who is hired to perform certain specific functions believes her employer is not complying with the law and suggests to constituents a method to exert pressure on the public agency to encourage compliance. The question presented by such a case is: when does the public employee take off her employee hat and put on her citizen hat?"

In this instance, the employee – a speech therapist working as a state contractor – opined to parents that Child Development Services was not in compliance with state regulations and urged parents to contact advocacy organizations, and her contract was not renewed.  The decision is very thorough and identifies and applies all the factors to determine whether and when public employee speech is protected.


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