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Letter from Cybersalem #11
Say "Take this job and shove it!" to your boss and go to jail? So says Washington County Circuit Court Judge Gayle Nachtigal's ruling in Oregon v. Randal Schwartz:
"First Amendment is a personal right. It has nothing to do with my communication on business. I have no First Amendment right to communicate beyond what my employer wants me to communicate, as far as my job is concerned. That's not a First Amendment right. First Amendment is personal to me or my company if it were an entity. It's that company may have some kind of a First Amendment right. But the First Amendment right is personal." [1]
Let's be clear -- what is at issue is not right of Intel (Randal's accuser), or any other employer, to dismiss. These remarks come from a hearing on criminal charges brought by the State of Oregon against Randal Schwartz. The question is "Is it a crime to speak your mind?" Nachtigal's answer is: At the workplace, yes.
By a personal right, Judge Nachtigal means one valid only outside work, not an inalienable right. Indeed, Judge Nachtigal holds First Amendment rights to be so easily alienable they disappear silently when you walk in the workplace door [2]. After that, "I have no First Amendment right to communicate beyond what my employer wants me to communicate". Telling the boss off, or saying anything else he does not want you to say can be a crime. If done by computer, it is.
Let's witness a pair of crimes. David Allen Coe:
The Foreman is a regular S.O.B.
And the night boss, he's a fool
He got himself a brand new flattop haircut
Lord, he really thinks that's cool
One of these days I'm gonna blow my top
And there's gonna be hell to pay
I can't wait to see their faces
When I get the nerve to say
Take this job and shove it
I ain't workin' here no more [3]
And Bob Dylan:
He hands you a nickel
He hands you a dime
He asks with a grin
If you're havin' a good time
Then he fines you every time you slam the door
No, I ain't gonna work for Maggie's brother no more [4]
A major part of the appeal of lyrics like Coe's and Dylan's is their celebration of our system of individual rights and limited authority, where the subordinate at work is equal as a citizen. The subordinate enjoys the right to tell the boss exactly what he thinks of him, if he is willing to live without the job. It's a system that gives legitimacy to authority and dignity to service, and one in which both take deserved pride.
With Nachtigal's decision, that pride must fall. Now rights in Oregon end at the workplace door, but the employer's ability to punish you for exercising them follows you back out.
To deal with employees who tell the boss to go to hell (or that his haircut is not particularly flattering), a company can quite reasonably have a policy which demands civil and respectful communication through all media, including email. Indeed, to preserve a sane and productive atmosphere for other employees, the employer needs to respond to these who use the workplace to vent spleen. Firing is a very legitimate measure in this regard.
Similarly, the boss can curb your attempts to convert your co-workers to your religion. If you violate his policy, he can fire you. But, under the First Amendment, the D.A. cannot send you to jail for practicing your religion.
Telling the boss off, using the workplace as a pulpit, or writing a report that implies the Security Department does not know what it is doing are all activities that an employer can and needs to limit. They are also all protected against criminal prosecution by the First Amendment. And when done on a computer in violation of workplace rules, they are all criminalized by the Oregon Computer Crime Statute.
Laws so broad that they criminalize the exercise of First Amendment rights have long been recognized by the courts as overbroad and overturned for that reason [5]. So the First Amendment was a fatal threat to Randal's prosecution, until Judge Nachtigal neatly disposed of the problem. People at the workplace have no First Amendment rights. Hence the law cannot infringe any. It definitely solves the problem.
It reminds one of the neat solution Justice Taney came up with when he saw that the Supreme Court was going to be the battleground for one dangerous, bitter, divisive dispute after another over slavery. He wrote a clear cut opinion for the court which disposed of all future such difficulty, basing that opinion on tradition that blacks "had no rights which a white man was bound to recognize [6]." Randal and anyone else at the workplace have no rights that Intel or Oregon feel they need recognize.
The repeal of Randal's rights here is no technicality [7]. He did not cause or intend harm. Others committed worse security infractions and were not only not charged with a crime, but not punished or reprimanded by Intel. The distinction between Randal and those others is that Randal found problems in Intel's network security and was working on a report that said things that Intel Security did not want to hear or have heard.
An Oregon appeals court might overturn this repeal of the First Amendment, but so far the first priority in the Oregon justice system has been to please Intel, Randal's accuser and Oregon's largest employer. Judges, police and D.A.'s have done what they thought Intel would want with monotonous reliability. For the the Appeals Court to do any different would be a judicial 180 on a dime. Nonetheless, it remains possible.
For Randal, the practical effect of a reversal would be limited. Neither his "restitution" to Intel nor any other part of his punishment was stayed pending appeal, so all in all Randal's expenses now reach nearly $250,000. Doing what it takes to get to the first level of appeal is a severe punishment in itself.
And what of someone who does not have a quarter million to buy a chance that the Appeals Court will make the academic point that he has First Amendment rights? This has to be the majority of us. Especially after being branded as a triple felon in the eyes of prospective clients and employers, a quick quarter million is hard to lay your hands on [8]. An appeals court reversal would just put an asterisk on the basic legal truth. Nobody working in Oregon can expect any benefit from a claim to have First Amendment rights.
To say Oregon employees have no First Amendment rights understates the situation. Nothing in Nachtigal's logic differentiates First Amendment rights from others [9]. Nor is her ruling limited to employees -- Randal was a contractor, so her ruling clearly applies in other situations. Also, nothing in her ruling depends on law unique to Oregon.
Note 1: Judge Nachtigal speaking in the demurrer. Tr. 7-1-94, page 22, line 5 to 14. The "demurrer", in this context, is the defense motion challenging the validity of the indictment on purely legal grounds, and the term also is used to mean the hearing on that motion.
Note 2: My references to the "workplace door" are figurative. Nachtigal's ruling applies to persons who are engaged in providing services, whether at home or elsewhere.
Note 3: Lyrics to "Take this Job and Shove It" by David Allen Coe.
Note 4: Lyrics to "Maggie's Farm" by Bob Dylan.
Note 5: A law can also be overturned for vagueness, which is different from overbreadth. In this letter I do not deal with the issue of the law's vagueness.
"An 'overbroad' law, as that term has been developed by the United States Supreme Court, is not vague, or need not be. Its vice is not failure to communicate. Its vice may be clarity. For a law is overbroad to the extent that it announces a prohibition that reaches conduct which may not be prohibited. A legislature can make a law as 'broad' and inclusive as it chooses unless it reaches into constitutionally protected ground. The clearer an 'overbroad' statute is, the harder it is to confine it by interpretation within its constitutionally permissible borders." State v. Blocker, 291 Or 255, 261, 630 P2d 824 (1981) and ibid, at 293 Or 410, cited from Defendant's Memorandum of Law supporting Demurrer in Oregon v. Schwartz.
Note 6: U.S. Supreme Court, Scott v. Sanford.
Note 7: Whether Randal was actually engaged in conduct protected by the First Amendment was not relevant to the demurrer. It is not Randal's conduct, but the constitutionality of the law that was at issue. The law must fall if it could be used to punish behavior protected by the First Amendment. What Randal actually did or was accused of doing was not at issue. If his behavior was actually criminal under some constitutionally valid statute, he could be charged under that statute.
Note 8: Randal's local newspaper, the Oregonian, did not wait for the verdict to announce his guilt. See CS10.
Note 9: Indeed, though it hardly seems possible, Judge Nachtigal disposes of Randal's 14th Amendment rights in an even more definitive manner.
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