CONSTITUTIONAL CONVERSATIONS
Peter Strzok’s Free Speech Rights
by
M. E. Boyd, Esq., “Miss Constitution”
In a little noted news release, it seems that the former Chief of Counterespionage in the FBI is suing his employer regarding what he alleges are his First Amendment free speech rights under the United States Constitution. As you will recall, the First Amendment prohibits a government actor from prohibiting or censoring public policy speech if certain conditions are met.
- It must be speech (express or symbolic)
- The speech must be about public policy
- The speech must be in the proper forum
- The speech must meet time, place, and manner restrictions (think march)
- The speech may not advocate actions that would overthrow a lawful government or incite immediate actions that would overthrow a lawful government or cause violence
These are the general rules; but what about rules that apply to a government employee? What if the employer of the government employee is the target of the speech? Special rules apply. Among them:
- The Hatch Act, a federal statute passed in 1939 and amended, prohibits federal employees from partisan political activity or using their authority to impact the results of an election or joining a political organization that would overthrow our Constitutional Republic. These restrictions apply to FBI employees although those same employees may express their political opinions.
- The Pickering (1968) case permits protected speech by government actors on issues of public importance but stresses a balancing test between the interests of the employee and the employer to determine if the speech is protected by the First Amendment.
The federal courts look at all these cases very closely as all the free-speech cases are very fact-specific. Mr. Strzok contends his text messages with a fellow employee amount to private speech that did not affect his official decision-making and should not have been released as a part of the Inspector General’s investigation into FBI behavior regarding the candidacy and then Presidency of Donald Trump. He contends that he has a right to personal political opinions that do not impact his official duties and that releasing these texts caused emotional harm as well as loss of employment in addition to violating his First Amendment rights. What does Miss Constitution think?
Miss Constitution thinks that protected free speech for government employees may be, under some circumstances, a healthy and necessary check on governmental power. That is one reason the Founders thought the First Amendment Free Speech Clause so important and it remains the jewel in the crown of our Constitutional system. That concept is one reason for the Whistleblower Statute that protects governmental employees when they speak out against corruption where they work.
A qualifier to this in the Pickering case is the level of authority of the employee. The lower the level the increased right to speak out; the higher the level the less right to speak out. Why? Because the higher the status of the employee the higher the duty of loyalty to the employer. In fact, a subsequent case to Pickering tells us that a governmental employee in a policy-making position as very restricted free-speech rights. The vigorous debate about policy should be held with other policy makers and whatever policy is then selected must be dutifully carried out. If one disagrees one can resign from government employment.
The facts of this case are that Peter Strzok was in a high-level policy making position within the FBI and that his employer, as part of the executive branch of the federal government, is whoever is President of the United States. That he did not like the candidate or the President-elect or then the President and preferred the alternative is perfectly acceptable. He can even voice that opinion. What he cannot do is plot with others to prevent the President’s election or to resist the President once he is elected or to create an “insurance” plan to have him impeached once elected. He cannot approve a counterespionage surveillance of the candidate’s campaign in hopes to injure his chances or in any way use the great power of his position to overthrow a duly elected President or otherwise injure both the President and the Office of the President.
He cannot be given responsibility to investigate the candidate he prefers and give that person a “pass” while going after a candidate he loathes under illegitimate pretenses even if his immediate supervisor encourages him to do so and he is encouraged by a current holder of the White House or his staff to do so. At that point his duty of loyalty is to the Constitutional Republic and he should use his free speech rights to reveal an abuse of power or he should resign. Once his loathed candidate is elected, he owes a high duty of loyalty to that person and, if he cannot bring himself to be loyal, must resign. He also owes a duty of loyalty to the Sovereign of the United States, the People themselves who chose the candidate they wanted.
Miss Constitution thinks that the lower federal and then appeals court will rule against Mr. Strzok’s claims and that the Supreme Court will not even hear the case and the lower court’s ruling will stand. He took the chance that if Hillary Clinton, his preferred President had won, none of this would have been revealed. We are a lucky Sovereign that it is all coming out.
Copyright©2020 M.E. Boyd, Esq., “Miss Constitution”
