More lessons, this time from the California Science Center

The First Amendment is often inconvenient. But that is besides the point. Inconvenience does not absolve the government of its obligation to tolerate speech.
–Justice Anthony Kennedy (1936 – )

This is going to be a quick post, at least for now, due to my time limitations.

Yesterday, the California Science Center (CSC), a public institution and affiliate of the Smithsonian Institution, settled a lawsuit against it filed by the American Freedom Association (AFA). AFA had claimed that CSC had breached a contract for AFA’s rental of CFC’s IMax theater to show a pro-intelligent-design film. CSC claimed that AFA breached the contract first by falsely publicizing, through the Discovery Institute, that the event was sponsored or endorsed by CSC. AFA, in turn, claimed that it had no control over the Discovery Institute’s publicity of the event. More importantly, AFA claims that the CSC cancelled the showing because of the content of the film, and that it therefore violated AFA’s First Amendment rights.

I can’t express an opinion on the lawsuit itself, since I have not seen any of the court documents, the original rental agreement, the discovery from the lawsuit, or the publicity that was allegedly a breach of the contract. But I do want to correct some misperceptions and answer some questions raised in PZ Meyers’s excellent post (does he have any other kind?) on the topic, and in the comments to that post.  I will add links and references tonight, time permitting.  [Update: I don’t have the time tonight, but I have made some minor edits.]

Pseudo-scientists have just as much right to speak out as skeptics do. The first comment to PZ’s blog suggests that the CSC should simply not rent to organizations like the AFA. That, however, would be a blatant First Amendment violation. If a government institution makes space available to outside organizations to engage in speech, it cannot pick and choose arbitrarily what kinds of organizations it will rent to. There are two levels of First Amendment analysis here. The first level looks at the ability (or inability) of a government organization to choose what it would allow to be shown based on the subject matter of the speech. For instance, if the CSC has made a clear policy that it will only rent its theater to organizations showing films relating to science, it will likely be able to successfully defend any claim that it must require a knitting club to show the movie, “How to Knit a Killer Sweater.” If, however, the CSC simply made its theater available to all non-profits, then it can’t later choose to exclude a film on abortion because it’s squeamish about the subject.

The second level looks at the ability of the government organization to choose the organizations to which it will rent based on the viewpoint of the speech. Another commenter on PZ’s blog asks whether “what Luskin [the Discovery Institute’s lawyer] says about the First Amendment (i.e. that it “forbids government preference for one viewpoint over another”) sound like complete shite…?” No, it’s not baloney. It’s entirely accurate. The worst thing a government institution can do is discriminate on the basis of viewpoint. The CSC cannot say, “We’ll rent to films explaining evolution but not to films arguing against evolution.” Can it refuse to show any films about evolution? Maybe, given its ability to regulate the subject matter to some extent, but if it starts to make policies excluding only controversial science subjects, then the courts will question their purpose in making those policies, and if the intent was to suppress speech with which the CSC did not agree, then the courts may require the CSC to change its policies.

PZ himself asks in the comments,

You can’t have a general license agreement that spells out a list of things you will intentionally discriminate against, without discriminating. I wonder, though, if there aren’t models for exclusion that could be used. If the KKK asked to lease the IMAX theater, would they do so?

Again, this depends on the policies and the purposes behind those policies. If the KKK wanted to show a film arguing that there is scientific evidence that people of African descent have inferior intellect, and the CSC’s policies state that it will rent out the theater to organizations showing films on scientific subject matter, then the CSC would likely have to rent the theater to the KKK. There are “models for exclusion,” as PZ puts it. Public libraries around the country deal with this kind of problem (limiting the use of meeting rooms) all the time, and the American Library Association has some guidance for libraries on its website.

One commenter answers PZ by saying,

KKK is classified as a hate group so if fits into an entirely different legal area.

Obviously, the fix for this is to get these creationist groups categorized as hate groups. Then the museum would be legally backed up in saying they don’t want to associate with homophobic, patriarchal, lying bastards.

Well, not quite.  There is no such legal “category” as “hate groups.”  There are things called hate crimes, but the key is that whatever you’re doing has to be a crime in the first place.  Then the sentence or penalty can be enhanced if your motive was “hate.”  In other words, if you just beat the crap out of someone for fun, then you may only serve up to five years in jail.  But if you beat the crap out of them because they’re gay, then you may spend up to ten years in jail.  But the government can’t treat someone differently just because the person hates gays.

Many comments make the point that the CSC should have allowed the AFA to show the film, but engaged in its own speech to counter the message presented by AFA.  Some commenters suggested holding a lecture before or after AFA’s film, or putting up posters around the theater, or otherwise publicizing that the event was not sponsored or endorsed by the CSC.  I couldn’t agree with these comments more.  People much smarter than I have recognized that the marketplace of ideas will take care of itself.  The best way to counter speech with which you do not agree is to engage in more speech.

Speaking of more speech, I’ll post more later.  I’ve got to get back to work now.

Court’s application of science of eyewitness identifications: Close but no cigar

 “[T]here is almost nothing more convincing [to a jury] than a live human being who takes the stand, points a finger at the defendant, and says ‘That’s the one!’”

–Justice William J. Brennan

I feel the frustration that many scientists report when they read media accounts of scientific studies.  I have finished reading all 132 pages of the New Jersey Supreme Court’s decision yesterday discussing eyewitness identification testimony, that is, eyewitnesses identifying a particular person as being the one whom they saw committing, or at the scene of, the crime.  The New York Times described the decision as issuing “sweeping new rules,” and Scientific Amercian said that the decision was an indication that “the courts seem to be finally catching up with the science.”   But a careful reading of the decision shows that there will be little effect on the admissibility of eyewitness identification testimony in New Jersey.

After two and a half years of careful study and debating, and a ten-day hearing before a special master at which over 200 scientific studies were admitted and seven expert witnesses testified,  the New Jersey Supreme Court determined that there were serious problems with the existing system of determining whether an eyewitness’s identification of a suspect is admissible in a criminal trial and, if it’s admissible, whether expert testimony and jury instructions on its reliability should be provided.  In fact, the court said, as courts and even law enforcement agencies have recognized before, eyewitness misidentification is the leading cause of wrongful convictions across the country.  Nationwide, “more than seventy-five percent of convictions overturned due to DNA evidence involved eyewitness misidentification.”

After finding that the current system was inadequate, the court carefully considered the factors that lead to misidentification, and established a better, but still far from perfect, system of filtering out unreliable eyewitness identification.  After I summarize the opinion, I will describe my concerns with it.

The “current” system

New Jersey’s now-former system, which is similar to other states’ systems, worked like this: The defendant brought to the court’s attention some evidence that the police, in getting an eyewitness to identify the defendant as the perpetrator, were “suggestive” to the witness during the process.  If the court determined that the process was impermissibly suggestive, then, before the state could have the eyewitness identify the defendant as the perpetrator at the trial, the state had to prove to the judge “that the identification[] . . . had a source independent of the police-conducted identification procedures.”  The court used the following five factors in making that determination:

1. the “opportunity of the witness to view the criminal at the time of the crime”;
2. “the witness’s degree of attention” to the crime and the perpetrator;
3. “the accuracy of [the witness’s] prior description of the criminal”;
4. “the level of certainty demonstrated at the time of the confrontation”; and
5. “the time between the crime and the confrontation.”

This system, the court astutely noted, “overstate[d] the jury’s inherent ability to evaluate evidence offered by eyewitnesses who honestly believe their testimony is accurate.”  The court described the recent research showing that juries are overly impressed with witnesses who express confidence in their testimony.  The Court said:

We presume that jurors are able to detect liars from truth tellers. But as scholars have cautioned, most eyewitnesses think they are telling the truth even when their testimony is inaccurate, and “[b]ecause the eyewitness is testifying honestly (i.e., sincerely), he or she will not display the demeanor of the dishonest or biased witness.”

The first sentence of that quotation stands in stark contrast to the rest of the opinion in that it provides no scientific basis for its assertion.  (When you don’t have the science, just “presume”!)  I’m pretty sure I remember hearing about recent studies indicating that people can’t tell liars from truth tellers.  But given the shortcomings of human memory, of which this opinion reminded me, I could be wrong about that.  I’ll update this blog post if I can find links to studies showing that people cannot spot a liar.

But the key to this, as the court noted, is that the eyewitnesses don’t realize that their testimony is inaccurate.  Even if they are being honest, the witnesses will be falsely confident, and the jurors will believe them.

The current law is based on a United States Supreme Court case from 1977, Manson v. Brathwaite.  That’s 34 years ago, for those of you without calculators handy.  In the 1970’s, however, there were only four published studies on eyewitness identification, according to the experts who testified in front of the special master.  The research has picked up exponentially since then, though; in the last 30 years, there were over 2000 studies on the subject, according to the special master.  From all of those studies, though, one has to wonder why it took this long to get to this point.

The court gave credit to the New Jersey Attorney General’s office, which, in 2001, had adopted “best practices” for administering lineups, but questioned the office’s position that a failure to follow the guidelines should not result in the inadmissibility of the identification.  (Compare that to the rule that a failure to give Miranda warnings when they are required does result in any statements made by the defendant being inadmissible.)  The court said that the Attorney General’s guidelines were inadequate.

The court decided that given the current science, something had to be done.

The court’s examination of the science

The court undertook a thorough and careful examination of the science, including an analysis of its reliability.   The court determined that the scientific community was in agreement on most of the factors that affect eyewitness identifications.   It discussed the manner in which many of the studies were conducted, and noted that many were double-blinded, controlled laboratory experiments, but others were “real-world” experiments or data analyses.  It recognized the importance of peer review to science, and described the agreement among the experts who testified before the special master.

I won’t go into the descriptions of the specific studies and findings specifically, but that section of the opinion is a good read.

The court then made specific findings as to several factors that the studies described that lead to reliability, or unreliability, of eyewitness identifications.  Those factors were divided into two types: “system variables” and “estimator variables.”  “System variables” are those arising from the process law enforcement uses to obtain the identification from the witness.  “Estimator variables” are “factors related to the witness, the perpetrator, or the event itself — like distance, lighting, or stress — over which the legal system has no control.”

The court made the following findings as to the “system variables”:

1. The identification “may be” unreliable if the lineup is not administered by a blinded administrator.  In other words, the police officer asking the witness to identify which picture in a lineup was the suspect should not know which picture is the suspect (or even if the suspect’s picture is among the pictures in the lineup).
2. Pre-lineup instructions are necessary to inform the witness that the suspect may not even be in the lineup, and that the witness should not feel compelled to select one of the pictures.  Without these instructions, witnesses may choose the “best” match to their memory, which will lead to an unreliable identification.
3. The witness’s choice in a lineup is unreliable unless (a) the pictures are taken and arranged such that the suspect does not stand out; (b) there is a minimum number of “fillers,” or known non-suspects, in the lineup; and (c) the lineup features only one suspect.
4. “Information received by witnesses both before and after an identification can affect their memory. Confirmatory feedback can distort memory. As a result, to the extent that the witness’s confidence in his or her choice may be relevant in certain circumstances, it must be recorded in the witness’ own words before any possible feedback.”  (But if the administrator is blinded, feedback would be impossible anyway.)
5. Viewing a suspect more than once during an investigation can affect the reliability of the later identification.  Successive views of the same person can make it difficult to know whether the later identification stems from a memory of the original event or a memory of the earlier identification procedure.
6. The evidence is insufficient to express any preference between simultaneous lineups, in which the pictures are all shown to the witness at once, or sequential lineups, in which the witness views one picture at a time.
7. Composite drawings, whether created by a sketch artist or computer, “produce poor results.”  “It is not clear, though, what effect the process of making a composite has on a witness’ memory — that is, whether it contaminates or confuses a witness’ memory of what he or she
   actually saw.”
8. “Showups,” in which only the suspect is shown to the witness, without any “filler” non-suspect pictures, are inherently unreliable unless they are performed within a couple of hours after the crime.

The court then analyzed the “estimator” variables as follows:

1. Even under the best viewing conditions, high levels of stress can diminish an eyewitness’ ability to recall and make an
   accurate identification.
2. “When a visible weapon is used during a crime, it can distract a witness and draw his or her attention away from the culprit. ‘Weapon focus’ can thus impair a witness’ ability to make a reliable identification and describe what the culprit looks like if the crime is of short duration.”
3. “[T]he amount of time an eyewitness has to observe an event may affect the reliability of an identification.”
4. “[A] person is easier to recognize when close by, and that clarity decreases with distance.  We also  know that poor lighting makes it harder to see well. . . . Scientists have refined those common-sense notions . . . .”
5. Being older or under the influence of drugs, or both, “can affect the reliability of an identification.”  Additionally, witnesses are better at recognizing people of their own age than people older or younger than they are.
6. A perpetrator’s changes in appearance, or disguises worn during the crime, can affect a witness’ ability to remember and identify a perpetrator.  “Disguises as simple as hats have been shown to reduce identification accuracy.”
7. “Memories fade with time.”
8. Witnesses have more trouble identifying persons of a race different from their own.
9. Witnesses’ exposure to opinions, descriptions, or identifications by others relating to the crime or the perpetrator can affect the accuracy of an identification.
10. Laboratory results are mixed as to whether an identification is more reliable the sooner after a crime it is made.

The Court then examined studies that attempted to determine whether the public and prospective jurors had accurate perceptions of the science relating to eyewitness identifications.  The court concluded that there was no definitive proof regarding what jurors know, but that generally “people do not intuitively understand all of the relevant scientific findings.”

The new rules

The court ended by setting out new rules, and a new system, for determining whether an eyewitness identification is reliable enough to be presented to a jury, and for instructing the jury how to analyze any eyewitness identification.

The court gave a step-by-step guide to its new procedure:

First, to obtain a pretrial hearing, a defendant has the initial burden of showing some evidence of suggestiveness that could lead to a mistaken identification. . . .  That evidence, in general, must be tied to a system — and not an estimator — variable.

Second, the State must then offer proof to show that the proffered eyewitness identification is reliable — accounting for system and estimator variables — subject to the following: the court can end the hearing at any time if it finds from the testimony that defendant’s threshold allegation of  suggestiveness is groundless.

Third, the ultimate burden remains on the defendant to prove a very substantial likelihood of irreparable misidentification. To do so, a defendant can cross-examine eyewitnesses and police officials and present witnesses and other relevant evidence linked to system and estimator variables.

Fourth, if after weighing the evidence presented a court finds from the totality of the circumstances that defendant has demonstrated a very substantial likelihood of irreparable misidentification, the court should suppress the identification evidence. If the evidence is admitted, the court should provide appropriate, tailored jury instructions . . . .

If some actual proof of suggestiveness remains, courts should consider the above system variables as well as . . . estimator variables to evaluate the overall reliability of an identification and determine its admissibility. . . .

The court rejected an approach recommended by the special master that would have been more favorable to defendants.  That approach would have allowed the defendant to use both system and estimator variables to obtain the pretrial hearing.  The court reasoned that (1) a court would not likely suppress an eyewitness identification solely because of estimator variables (what is “too dark” to see a suspect?); (2) courts cannot affect estimator variables; (3) “suggestive behavior can distort various other factors that are weighed in assessing reliability[, which] warrants a greater pretrial focus on system variables”; and (4) with the recommended approach, there would be a lot more pretrial hearings, and those hearings would be more “intricate,” and that’s just too much of a pain in the ass.  (OK, that last clause is my phrasing, not the court’s.)

The court then stated that instructions to juries in criminal cases should be uniform and should explain the relevant factors that effect the reliability of the identifications.  It asked a committee to draft proposed revisions to the state’s model jury instructions, which the court will review.  The court will then adopt new standard instructions (which may be modified in each case to fit the case’s specifics).

The shortcomings of the new system

Although this is a good start, I don’t consider it a major breakthrough or vast improvement over the past, for several reasons.  First, the procedure for the judge’s review of the eyewitness identification before it gets to the jury gives short shrift to the science.  After discussing how unreliable eyewitness testimony is, the court still requires the defendant to show some suggestiveness in the administration of the lineup (the “system variables”) in order to even have the court begin to consider whether the eyewitness testimony might be reliable.   This can mean that the state may be able to have admitted into evidence the testimony of a witness where the science says that it is very unlikely that the testimony will be reliable, as long as the lineup was performed correctly.

As an extreme example, if a witness was on the 20th floor of a building 200 feet from a crime on the street, at night, and the perpetrator was wearing a ski mask, but then in a well-run lineup the witness identifies the suspect as the perpetrator, the court’s decision leaves no procedure for the defendant to challenge the reliability or admissibility of the eyewitness identification.  Only after the eyewitness has pointed to the defendant in the courtroom and said to the jury, “That’s the guy!” will the defendant be able to cross-examine the witness to attempt to show the unreliability of that testimony.

This procedure is at odds with the science that holds that the eyewitness identification is likely unreliable to begin with, whether or not there is some lineup and whether or not any lineup is performed using the most recent science.

Second, the procedure puts the ultimate burden on the defendant to show that the identification is unreliable.  In fact, the court requires the defendant to show “a very substantial likelihood of irreparable misidentification.”  One has to wonder how a misidentification would ever be repaired given the science that (1) memories get worse, not better, with time, and (2) outside influences on a person make memories less reliable.  If eyewitness identification is as troublesome as the court describes, and if it has caused so many wrongful convictions, then how does the court justify what boils down to a presumption that the eyewitness testimony is reliable?  Shouldn’t it be up to the state to show that the identification is reliable before it is admissible?

Third, and perhaps most telling, is this statement by the court:

We also expect that in the vast majority of cases, identification evidence will likely be presented to the jury.   The threshold for suppression remains high. Juries will therefore continue to determine the reliability of eyewitness identification evidence in most instances, with the benefit of cross-examination and appropriate jury instructions.

In other words, not much will change.  Oh, the juries may hear from the judge all about how the eyewitness identification may be affected by all of these factors, but the opinion does not cite any science that shows that the jury instructions will have the desired effect of accurately weeding out unreliable eyewitness identifications.   I doubt that the jury instructions will undo the scientifically-proven effects of a confident witness’s testimony that the guy sitting at the defense table was the one whom the witness saw stab that poor old lady who was just minding her own business.

Conclusion

Don’t get me wrong; I’d rather be a defendant under the new system than under the old, and I’d rather be a member of the society that uses the new rules than the old.  I wouldn’t say, for instance, that this opinion stinks like the stretch of the New Jersey Turnpike that goes through the City of Elizabeth.  (Sorry, had to work that in somewhere.)  I also have the give the court credit for acknowledging that the science will continue to change, and that the police and the courts must adapt to that change.

I just think the court was a little wimpy in adopting its new procedures, and that the new procedures don’t effectively resolve the problems with eyewitness identification testimony that the court has raised.  After all, as the court said, ” At stake is the very integrity of the criminal justice system and the courts’ ability to conduct fair trials.”

Quickie News: Court issues science-based guidelines on eyewitness identification

This is huge.  HUGE, I tell ya.  So huge that, after I heard this on the radio this morning, I had to squeeze in this post during my lunch hour.  I’ll try to get out a full post tonight.

The New Jersey Supreme Court has issued an opinion today that is the culmination of several years of work by it and its special master determining the science regarding eyewitness identification.  According to the case summary produced by the court’s clerk, “The Special Master presided over a hearing that probed testimony by seven experts and produced more than 2,000 pages of transcripts along with hundreds of scientific studies.”

So, you ask, why is this such big news?

Glad you asked.  For centuries, courts have established rules of evidence that seek to determine what kinds of information is reliable, so that decisions are made based on the most reliable information available.  That’s right: eons before the invention of computers, somebody in a robe and powdered wig was uttering “garbage in, garbage out.”  But the rules of evidence are based on nothing more than centuries of gut feelings by judges and legislators about what kind of information is trustworthy.

As many studies have shown, because of human nature and the human brain, eyewitness identification of a person is often flat out wrong.  (I tried to explain this to my wife once, but she still didn’t believe that I had mistaken the 23-year-old skinny brunette for her.)  It is also the sole real basis of many convictions.  As a result, many of those convictions are factually incorrect, and many more may be factually correct but legally incorrect in that the evidence used to support the conviction did not actually prove beyond a reasonable doubt that the defendant was the one who committed the crime.

That a court would engage in scientific research to determine what information is reliable is surprising but reassuring.  Of course, this came from a pretty progressive state; my hopes for similar measures in other states are not so high.

Read all about it here, for now, and watch for more in this space.  Maybe I’ll even have time to read the entire 135-page decision this afternoon.

Quickie News: Town gets sued for banning psychics

This post introduces a new feature of this blog: “Quickie News.”  Because I’m a lawyer and have to be precise with my language, I should explain that by “Quickie News” I mean a very brief post to inform my readers of some science/skeptical/legal news when I don’t have time for a lengthy, explanatory post.  I don’t mean news about couples engaging in short-lived coitus.

For some of the Quickie News posts, I’ll try to write a full, explanatory post later on.  I may, as I will do here, add a “quickie analysis” just to get things going.

The honorable subject of my first Quickie News is the town of Hattiesburg, Mississippi, which is being sued for prohibiting psychics from plying their trade within the town limits.

Quickie analysis: The psychics have a good case, especially as to the “prior restraint” on their speech.  It’s almost impossible for the government to legally prohibit (enjoin) speech before it happens, as was famously described in the Pentagon Papers case.  Authorities would have a much better shot at charging the psychics with a crime or violation of their state’s unfair trade practices law, if they have one.

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.