Lessons from EpiRen: do public employees have free speech rights?

For this, my first post on this long-planned blog, I am hoping to use current events in the skeptical world to show one way in which I hope to be of some help to skeptics: by giving a brief, plain-English explanation of the law surrounding some issue.  Be warned, though, that by making a “plain-English explanation,” I am purposely leaving out some of the nuance and gray area of the law.

Here, my focus is on a post on Liz Ditz’s blog, I speak of Dreams.  The post describes how René Najera, an epidemiologist for a state department of public health who goes by the pen name “EpiRen,” was ordered by his supervisors to stop his blogging and tweeting about matters relating to public health.  The orders came after a man describing himself as a “pharmaceuticals entrepreneur” contacted the supervisors to complain about Najera’s comments, which the “entrepreneur” claimed defamed him and his business.  Najera, not wanting to risk his job, agreed, and will no longer be blogging or tweeting about public health.

The comments to the post included a question about the legality of the supervisors’ orders:

This seems to me like a violation of free speech. Just as it is illegal to fire someone because of race or religion, shouldn’t it be illegal to fire someone for views expressed outside the workplace?

and a biased, ignorant response to that question:

[A]s a labor organizer, I can tell you for a fact that unless [Epi]Ren is a member of a union, he can be fired at any time for any or no reason at all, as long as it doesn’t come under the EEOC protected things like race, gender or religion.

So unless Ren can prove that protecting the public’s health by educating online is his religion, he can be fired for his online communication. Unless you have it protected in a union contract, you have no free speech if your employer doesn’t like it.

The bias of this “labor organizer” results in a common overstatement of the benefits and protections of unionization.  There are many other sources of protections for workers, and especially government workers, in both federal and state laws, ranging from state and federal constitutions on down to agency policies.  There is also the private employment contract that affects any employment relationship, whether that contract is formed by collective or individual bargaining.  (I’ll admit, though, that most employees have far less bargaining power when acting individually than when acting collectively.)

But I digress (mostly due to my own bias against unions).

Public employees have the free speech rights of other citizens

The U.S. Supreme Court, in the May 2006 decision in Garcetti v. Cabellos, had occasion to explain the free-speech rights that public employees possess.  In that case, Cabellos, a deputy district attorney, was disciplined for his complaints about his supervisors’ actions that he wrote in an internal office memorandum.  The Supreme Court found that Cagellos’s free-speech rights were not infringed when he was disciplined, because the memo was written in his capacity as deputy district attorney, and a government agency is entitled to review the work of an employee even if that work involves speech.

The Court was careful to point out, however, that when a public employee speaks  on a matter of public concern as a citizen, and not as a government official, the employee is entitled to most of the free-speech rights of any citizen.  Yes, I said “most” and not “all.”  The Court said that a government agency has some discretion to restrict the non-work-related speech of its employees if that speech affects the agencies operations.

From the facts that I have (which isn’t the same as the facts a judge or jury would have after a trial), Najera was not speaking in his capacity as a public official.  Therefore, the rights of his employers to censor his speech are very limited.  I have not heard anything that indicates that his blogs and tweets have affected his employer’s operations.  Therefore, I think, based on my very limited knowledge of the facts, that Najera would have the protection of the law, namely the First Amendment of the U.S. Constitution, for his speech.  He probably can’t be fired for his blogging and tweeting.  But, like any good skeptic, I’m open to more information that might change my mind.

Note that these protections are less available to employees of private companies (or individuals) than government employees.  An employee in the private sector can, and often does, give up a right to speech as part of the employment contract.  Wal-Mart would have the right to fire me for saying that it’s a dangerous, conspiratorial organization out for world domination, more than the Environmental Protection Agency would.  Perhaps this is what the union organizer was referring to, but he or she missed the very important fact that Najera was an employee of a public, and not private, employer.

The importance of government-employee speech

In Garcetti, the Supreme Court noted that giving public employees free-speech rights protects not only the employees, but also society.  Government employees, after all, are in the best position to report on the activities of the government agencies for which they work.  It is in society’s best interest to give government employees the ability to inform the public about the activities of, and problems in, a government agency, the Court indicated.

The evils of suppressing Najera’s speech

I was not familiar with Najera/EpiRen.  But several people whose opinions I trust have expressed how wonderful he is.  Therefore, I accept that he is wonderful.  (Fellow skeptics, name that logical fallacy.)  But that is completely irrelevant to my opinions on this situation.

Najera’s employers (no, I’m not going to comment on the “pharmaceuticals entrepreneur,” and not because I’m afraid that he’ll sue me if I say something nasty about him) have acted rashly in stifling Najera’s outside activities, even if they relate directly to his job.  No, make that especially because they relate directly to his job.

As the Supreme Court expects, I want public employees to speak out about subjects related to their jobs.  Who better to tell me what’s going on in a government agency than someone who works there every day?  Who better to tell me about public health than someone who works in that field?

I think Najera’s employers might make things worse for themselves for what they have done.  I suspect that most people who find out about this would trust Najera’s agency less now than they did before.  They have all the appearances of hiding something, and of being afraid of their employees talking without an official sanction of everything uttered.

A personal note

Some of you may have noted that my real name is not on this blog.  That’s because I work for a public agency, and I do not want my agency connected with anything I write.  I am, of course, speaking entirely on my own, and my agency has nothing to do with this.

If, someday, somebody discovers who I am and complains to my employers, and if they order me to stop writing public comments on the law, I most likely will.  I completely understand Najera’s decision to stop his outside activities in favor of his job.  I only wish his employers would encourage, rather than prohibit, his outside activities in the interest of public health.

51 Comments

Filed under Free speech

51 responses to “Lessons from EpiRen: do public employees have free speech rights?

  1. So do you think Rhett’s scare tactics actually have substance to them?

  2. Chris

    Pranab, you might want to read the account of a lawyer who tried to silence another blogger:
    Welcome to My Conspiracy (check out what the links are!)
    and
    Sanctioned

  3. I didn’t see any mention of his legal obligations as a doctor, and if he is a practicing licensed MD, (not sure of his current status) then doctors are required to speak out to protect their patients and public health in general, if they believe someone else is committing harm to the public.

    (At least where I am from anyway)

    I wonder if this affects the employers ability to stop him from speaking up? How does this fit within the agencies mandate to serve the public?

    As for the “wonderful” part, he was able to relate medical facts to the average citizen clearly and simply. A rare skill. So, wonderful IMO

  4. @Pranab:

    I doubt it. I haven’t seen EpiRen’s original post that Rhett claims was “defamatory.” Given the subject matter, though, I think he would have to prove that what EpiRen said was false and that EpiRen knew it was false or acted in reckless disregard of whether it was true or false.

    I’m sure I’ll do a post on defamation at some point.

    Thanks for being the first commenter on my new blog!

    • The post was, as far as both EpiRen and I could ascertain (we didn’t work together, we merely checked the same references as given by the person claiming to be Daniels) factually accurate, and therefore hardly defamatory. It was, perhaps, rude, but it was couched in far, far politer terms than Daniels himself was using on Twitter or his now-defunct blog.

      All quotes that may have been drawn from Daniels’s writings were verbatim.

    • :-) Thanks. I hope to follow the blog closely. I hope you find time to keep writing…

  5. Chris

    Can you tell us if his email demanding information is valid?

  6. Chris

    And also tell us if lawyers routinely get hired from Craigslist.

  7. Chris:

    I don’t know Florida law or the law where Liz is, but in many states and in many instances, there can be a legal duty to preserve information if you are put on notice that the information may be used in a lawsuit, which seems to be what he is asking for. That does not mean that Liz has to give him any information, but just has to preserve it for now. To actually require her to give up any information, he would have to subpoena it as part of a lawsuit, and then a court would be able to review any request to determine if it is legal and reasonable.

    • Rob

      Wouldn’t that letter have to be delivered via certified mail?

      FYI, that address is a UPS store, don’t know if that changes anything.

  8. Aurelia:

    Doctors usually have a duty to report information that they learn in their professional capacity if that information is that a person may be a risk (usually only of physical harm) to him/herself or others. Usually that means that a doctor has to report that a patient may be a risk to another person.
    I don’t think EpiRen would have any duty to report anything if he is doing so as part of his hobby as a blogger.

  9. Chris:
    I’m not in private practice, so I haven’t read any articles on lawyer advertising in years. I don’t know how well Craigslist works for lawyers, but I can tell you that I wouldn’t hire a lawyer based on a Craigslist ad.

  10. Do please explain more about your bias against unions, and how you would help someone get their job back if they were fired unfairly… and how long that would take.

    Seriously, we are on the same side here, the side of employees having free expression. I’ve spent fifteen years in the trenches defending folks’ right to speak out. Let’s work together, and skip the scare quotes, k?

    I look forward to following your new blog.

    • Come to India, mate, especially (ex)commie states like West Bengal. Everyone here is a union leader… strikes are official holidays for us! ^_^

      Jokes apart, I have seen an ugly side of Unionism and I understand a lot of institutions have a firm policy on no such activism…

  11. Thank you for writing this post. Topics surrounding the law, censorship, defamation, etc. are quite interesting and something that I would love to learn more about. In particular, given recent events, what types of comments would be considered defamatory and which would merely be “rude,” as well as information on some of the legal claims suggested by the entrepreneur.

    • I am not a lawyer, but common sense tells me whatever I can back up with irrefutable proof cannot be defamatory. However, I can choose to make the tone of my position rude/sarcastic or whatever. IMHO, Defamation is more about the content, and Rudeness about the tone of the delivery….

  12. Heather

    The Craiglist post appears to be posturing. something to link to that can be publicly trotted out as a scare-mongering tactic. It’s no fun trying to scare people if nobody else can see it.

  13. Brilliantly written! Looking forward to more from you!

  14. Contrary to popular belief, organizing unions is still legal in this country, protected by the National Labor Relations Act. While I would never attempt to defend all unions (or all doctors, hospitals, epidemiologists, or all of *anyone* the right of people to come together for mutual aid and protection is still a pretty good one, especially in a country where money and power are so unevenly distributed.

    Skeptical Lawyer: Have you seen the recent NLRB General Counsel’s memo on cases involving employee use of social media? It is very relevant to the current discussion and I’d like to know your thoughts. I will see if I can figure out how to post a link…I have it as a PDF.

  15. You are writing about the situation in the USA.

    I work for an organisation in which I’m employed as a doctor on National Health Service (NHS) terms. My contract explicitly states “You shall be free, without our prior consent, to publish books, articles, etc., and to deliver any lecture or speak, whether on matters arising out of your NHS service or not.”

    The organisation is subject to reorganisation, with plans for it to become an “Executive Agency” of government. My current terms would be protected; but future employees would be “civil servants”, as government employees are called here. In the UK, in contrast to USA, civil servants are extremely constrained in what they can say in public. Indeed, at a recent meeting, somebody from the government department we’d become part of said that we would not be able to speak out without prior permission, regardless of what our contract stated (this was, of course, legally wrong – the contract takes precedence).

    It is worrying, however, that government is trying to move people like myself – the people with the expertise to know and be able to tell people what is likely to work, and what is a political reaction that will probably have adverse consequences but not work – into positions in which we can be more easily silenced.

    We watch US’ attempts to provide a health system that cares for the poor and people on middle income, and which has a gun lobby that has succeeded in convincing public an politicians that access to guns makes people safer, with dismay; but on this issue (free speech of government employees) you seem to have got it much more right than we have in the UK.

    • harebell

      Indeed Stephen Harper is doing that in Canada where fisheries scientists have been gagged along with many other scientists who are studying other issues that might contradict the official dogma of our conservative party. Pollution in the Oil Sands area and the deaths attributable to activity there is one high profile case at the moment.
      It appears only science that agrees with platform can be read. The rest although owned and paid for by the people, can never be read by them.

  16. I’m honored that my humble blog post prompted you to take up blogging. There’s a need for just such information.

    By the way, this morning both Orac and PZ Myers have taken up discussing Mr. Daniels’ actions relative to Najera:

    http://scienceblogs.com/insolence/2011/08/the_consequences_of_blogging_under_ones.php

    http://freethoughtblogs.com/pharyngula/2011/08/22/rhett-s-daniels-litigious-bully/

    And if you want to tweet about it, it’s suggested you use the hashtag #epigate rather than René’s name or twitter handle.

  17. Welcome to the blogosphere! That was a very interesting look at the current issue and your input is greatly appreciated.

  18. Pingback: Rhett Daniels, @EpiRen and The Streisand Effect: A Blog Round-up | Scepticemia

  19. Back in 1L a classmate suggested that the War on Drugs should be waged as a civil matter rather than criminal. He reasoned that we might as well claw back the profits.
    I told him it could be his job to serve the originating notices.

    It would seem likely that EpiRen is within his legal right to blog about matters of public health. I doubt that the blog affects the operations of his employer, or that the employer has any interest or desire to prevent him from blogging.

    What we have here (although I have my doubts about Rhett’s veracity), is someone who is prepared to contact everyone in the company directory with allegations of slander and defamation, and make loud noises about big numbers and law suits.
    No one needs that shit.
    “Hey, Rene, can you come in here for a minute? You write a blog?”
    “Yeah…how did you…”
    “Cut that shit out, willya? I got enough to deal with having to deal with stupid crap like this!”

    And THAT is where the speech of the employee DIRECTLY affects the operations of the company. When some asshole costs them time, attention and money. by filing a vexatious claim. As a practical matter, the best way to win in court is not to be there. Having the better argument and the law on your side is only second best.

    It’s trite and unpleasant but the only way we establish EpiRen’s right to blog about public health is when a judge rules on the question…and then when all avenues of appeal are exhausted. When faced with a litigant who is angry, committed, has the financial resources (and may be half mad), standing on principle may often seem a less appealing option.

    There’s being right, and then there’s spending five or ten years in court and torching (minimum) a few hundred thousand dollars to get there.

  20. Pingback: Of douches, online identity, and ethics | White Coat Underground

  21. Delighted to have your voice around. I am definitely interested in more of the legal issues around skeptical blogging. We just recently saw the stem cell clearinghouse site shut down by legal threats, and if cranks keep seeing this tactic is working it’s only going to get worse and worse for the voices of reason.

  22. rhett daniels

    Hi –
    Just wanted to give you quick insight. I wasn’t sure who or what Liz Ditz was… so I sent out a standard notice to preserve information.
    When Liz posted that she found it ridiculous, I was able to then connect the dots… so, although I didn’t at the time have her physical address to hand deliver (via certified mail) the evidence supports that she received the document and has knowledge of what it means.
    Now that I know her Google Plus profile is her Blog Profile, she will get a letter to her physical address that will say the same thing – minus the typos.

    the above is just a step, nothing more nothing less. The contents in the letter are/were true regarding community property state (and that spouses have responsibility for 50% of debt).

    I am REQUIRED to put that in notice, to do otherwise would be to withhold information from a potentially impacted party.

    Again, I am not interested in “going after” liz… i’m just preserving of record / notice etc… in the event that some lunytoon gets physical or threatens me or something or does some act like interferes with contracts, etc…

    On a side note, I want to thank you all for the attention, and hope that I won’t disappoint you in the future.

    Yours Truly,

    R

    also, some of the best employees have come from craigslist. why go to a big firm when you can get something even better for less…

    • Rob

      So let me get this straight. You are asking her to preserve things while simultaneously deleting your own presence. It doesn’t seem like a judge would be particularly well disposed to that.

  23. Rhett S. Daniels, PhD

    Another Rhett Daniels here. Just want to say that this guy with the same name as me isn’t me, and I’m really confused what the heck he’s doing.

    R

  24. Ichthyic

    “On a side note, I want to thank you all for the attention, and hope that I won’t disappoint you in the future.”

    nope, I expect your story will play out a lot like another crank who felt the need to target science writers and bloggers:

    http://arstechnica.com/science/news/2011/08/crank-who-targeted-science-writers-lured-into-threatening-police.ars

    I wonder if you will grasp the lesson involved?

  25. Rhett S. Daniels MSc

    [Skeptical Lawyer's note: this comment was edited to remove links to websites that were, in my opinion, completely disgusting. I do not want my blog to have active links to these sites, one of which boasted of its "snuff videos".]

    the below is the result of nine months of research into how evil mankind is.

    dnepropetrovsk murders (3 young guys bludgeon and then torture a man with a screwdriver):
    [link deleted]

    dagestan massacre (6 russian soldiers killed by muslims very slowly):
    [link deleted]

    mexican dr learns to cut heads off and choke victims simultaneously by using their own blood:
    [link deleted]

    burnt alive in kenya for witchcraft (nice slow roasting):
    [link deleted]

    boys torturing dog in mexico (dog kept hanging around, strange?):
    [link deleted]

    slow beheading of christian (allah akbah):
    [link deleted]

    korean christian missionary begs for his life before beheading (“I too yung, I wunt to lieve, I want to go to Korea…too yung!”):
    [link deleted]

    man ripped in half (bike cop) still alive and laying in street with no lower torso.:
    [link deleted]

    high dive off cliff goes wrong. splits face and is conscious:
    [link deleted]

    compared to the above, I’m a saint!

  26. Ichthyic

    “I only wish his employers would encourage, rather than prohibit, his outside activities in the interest of public health.”

    I’m curious; do you think your employers should encourage people to be more aware of the law and how it is applied? Are they on board with you blogging about it as I write this? Pseudoanonymity is no longer any protection, that much is clear.

    What would be a reason, other than arbitrary capriciousness or general laziness in dealing with criticism, that they would want to shut your blog down if someone like Daniels complained?

    You would agree with that reasoning, regardless?

    • Love your screen name, Ichthyic!

      Yes, my employers (now and at the agency I used to work at) should, and do, encourage people to be more aware of the law and how it is applied.
      My current bosses don’t know about this blog, and I’m not going to tell them, not because I think they’ll disapprove, but because I want as few people as possible knowing who I am. They may very well find out in the future, and I don’t fear that possibility.
      There would be many valid (in my opinion) reasons for an agency to want to control the speech of its employees: to ensure delivery of a consistent message; to avoid the necessity of responding to criticisms of employees’ speech, which can take quite a bit of time; and to maintain impartiality and, just as importantly, the outward appearance of impartiality.

  27. It seems to me that Rhett Daniels (not the doctor of philosophy) has managed to rouse a sleeping giant, and fill it with a terrible resolve. :)

  28. Any thoughts on the free speech rights of a teacher? It feels like, because I’m supposed to a bastion of morality, that I have fewer rights to speak freely outside of my employment, on subjects of a sexual nature for instance. I don’t write anything insulting, but I do get personal. Now I’m worried that I should take down my blog even though it’s under a fake name. I say more here.

  29. Lawrence

    Good point about telling a person to preserve information / data for potential discovery while simultaneously deleting one’s own information – given the recent case law & sanctions over “failure to preserve” on both sides of cases, something like this is tantamount to asking the courts to make an example of the offending party.

    Being in the eDiscovery field, I can tell you that this is definitely a violation of the FCPA & if he is asking for people to preserve, it automatically means that his duty to preserve (as a potential counter-suit party) kicks in as well.

  30. Lawrence

    Oops – I mean the Federal Rules of Civil Procedures.

  31. Thank you all for your comments to, and interest in, my first blog post. I’m truly sorry that I didn’t have more time to respond to more of the messages, but please know that just because I didn’t respond doesn’t mean that I don’t very much appreciate the comment.

  32. Pingback: Free Speech and Public Service « J. K. Wickiser Lab

  33. Pingback: Comment: Thank you, Nature « Short and Spiky

  34. Pingback: Comment: Thank you, Nature » Short & Spiky

  35. Hello there! Do you use Twitter? I’d like to follow you if that would be okay. I’m absolutely
    enjoying your blog and look forward to new updates.

  36. I would follow you on twitter too! Let us all know – we’re curious!

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