LEAP down under

I was up most of the night writing an article about marijuana policy. The publisher gave me a deadline of October 5th, and for some reason I got writer's block until, you guessed it, October 5th. Anyway, more about the article later.

With the LEAP Australia tour underway, I thought it might be a good time to introduce our new Australian speaker:

John McGeary is a retired Senior Constable who believes regulation and control, through legalization, will be a better way of dealing with drug issues than drug prohibition. There are, according to John, six primary reasons why we need change and his long career of lecturing enables him to explain them clearly. He believes less harm would accrue in a regulated marketplace while extensive publicity and education on the negative effects of drugs, as is currently done with tobacco, would make drug use less attractive for disaffected young people. Of all the drugs, he sees alcohol as the most problematic.

Also, there are a bunch of Australian events scheduled over the next three weeks. You can check them out on the LEAP calendar!

Mass. Decrim Has No Effect On Schools

So say some Massachusetts school officials--the same ones who say decriminalization "sends a terrible message to kids." The story by John Hilliard is here (via the Agitator).

This really is no surprise, but it's important for a few reasons. Prohibitionists seem to care more about "the message" than about actual drug use and drug harms. For too many, it's a moral issue and not a policy issue.

I like to ask those who support the war on drugs if they would support legalization if legalization and regulation decreased drug use. I'd say close to half say "no." Better, they tell me, to keep drugs illegal regardless of drug usage rates. Sometimes increased drug use and overdose deaths can be useful, some drug-warriors even say, for having people overdose in the ghetto sends a powerful “message” to others.

Hmmmmmmm. This sort of ends the debate. So it’s not about drugs. It’s about morals and the power and symbolism of the law.

Prohibition is about a conservative world view that sees drugs as evil. And evil needs to be outlawed. Prohibition is about big-government telling people what to do and how to live their lives.

Take Harry Asslinger (oops, honest typo but much too good to delete)--I mean Harry Anslinger. He was very happy, after failing to maintain alcohol Prohibition, to raise the false alarm about marijuana.


Perhaps Anslinger’s greatest accomplishment was to push marijuana from a fringe drug into the mainstream. That's what happens when you call it the evil weed and highlight the moral turpitude of minorities, immigrants, Catholics, liberals, and other city folk who, like Anslinger believed, were destroying the moral fiber of America.

Whatever. Good or bad, those cool cats sure knew how to party!

In my mind, the debate on drug decriminalization comes down to one main issue: in an era of legal and regulated drugs, would drug use increase or decrease? Of course we can't be sure because we haven't tried it. But the evidence strongly suggests the use would not go up and might go down.

System of liberalization and/or decriminalization result in no increase in drug use. Marijuana usage rates in the Netherlands (where it is publicly sold and legally consumed) are lower than in the U.S. Decriminalization in Portugal has also been a success.

How does this work? Lot's of reasons. Forbidden fruit. Distrust of authority. And consider what Diego Gambetta recently pointed out to me: there’s a lot more pressure in social situations to conform and partake in illegal activities than for comparably legal activities.

If a joint is being passed around, you’re expected, especially in young crowds, to smoke a little. This serves two functions beyond social bonding.

1) It shows you're not a cop.

2) You can’t blackmail anybody with your knowledge of illegal behavior since you're guilty too.

There’s a lot more pressure (especially for teenagers) to smoke a joint being passed around than to smoke an offered cigarette. These days cigarettes, regulated and taxed, aren’t even being offered much.

Marijuana decriminalization in Massachusetts has not resulted in a bunch of school kids suddenly discovering the drug and firing up. Hell, the first time I ever saw marijuana was in school, watching a drug deal go down in the bathroom (regulated drugs aren’t sold in school bathrooms). And the best anti-drug lesson I ever got was from the guy who sat behind me in first-period German class. He would also come in late, stoned, and reeking of (tobacco) cigarettes. He never learned any German. But then neither did I.

[from Peter Moskos's Cop in the Hood]

Police officers and freedom of speech (part two)

LEAP speaker Jay Fisher continues this multi-part series about law enforcement officers and free speech. In this part he examines five states - Georgia, New Hampshire, New York, Montana and Missouri. If you have some knowledge of the case law in other states please share your thoughts in the comments section.

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GEORGIA

The Georgia Constitution, Art. I, § I, Para. V states that: “No law shall be passed to curtail or restrain the freedom of speech or of the press. Every person may speak, write, and publish sentiments on all subjects but shall be responsible for the abuse of that liberty. “

Georgia law is particularly thin on case law to direct government employees speaking about public interest matters. The author's search revealed only two cases which remotely addressed the topic of government workers and public expressions – and one of these was from 1979! This may be caused by Georgia's strong right to work heritage and the failure of employees to challenge terminations for any reason (never mind free speech issues). However, a review of the more recent decision [Palmer v. Stewart County Sch. Dist., ___ F. Supp. 2D ___ (M.D. Ga. June 17, 2005)], indicates that Georgia courts would likely strictly follow the Garcetti and Buazard models that were explained in part one of this series.

NEW HAMPSHIRE

The State of New Hampshire has a long tradition of libertarian influence. In deference to this history, the state codified the right of public employees to speak on matters of public interest:

Notwithstanding any other rule or order to the contrary, a person employed as a public employee in any capacity shall have a full right to publicly discuss and give opinions as an individual on all matters concerning any government entity and its policies. It is the intention of this chapter to balance the rights of expression of the employee with the need of the employer to protect legitimate confidential records, communications, and proceedings. RSA 98-E:1.

The state appellate court has interpreted this rule to mean that New Hampshire provides broader protection than that afforded under the United States Constitution. Appeal of Booker, 139 N.H. 337, 653 A.2d 1084 (1995). However, the law still specifies that the public employee must be speaking as an individual and not as a spokesperson on behalf of the agency itself. Id.

NEW YORK

Like New Hampshire, state history and tradition play large roles in the formation of New York’s laws governing the ability of public employees to speak on public issues. New York has a long history of employee protection and labor organization. Thus, they have codified the ability of public employees to speak on special interest issues and the wording is rather liberal. Civil Service Law 107(1) expressly prohibits a government agency from appointing, selecting or removing a person from government service based upon his or her “political opinions or affiliations.” Hamilton v Brennan, 119 NYS2d 83 (1953). However, this law is limited to members of the civil service – those employees in exempt positions or non-competitive class employment would not be covered by the law.

MONTANA

The Montana Constitution provides that: “No law shall be passed impairing the freedom of speech or expression. Every person shall be free to speak or publish whatever he will on any subject, being responsible for all abuse of that liberty.” Mont. Const., Art. II § 7. Furthermore, the state code provides that it “is an unlawful discriminatory practice for the state or any of its political subdivisions…to refuse employment to a person, to bar a person from employment, or to discriminate against a person in compensation or in a term, condition, or privilege of employment because of that person's political beliefs.” Mont. Code Anno., § 49-2-308 (1)(c). Montana courts have interpreted the law along the United States Supreme Court’s decision in Connick: “when a public employee speaks out not as a citizen upon matters of public concern, but instead as an employee upon matters of only personal interest, the courts will not review the wisdom of a personnel decision taken by a public agency. Conversely, it seems proper to hold that if the public employee does speak on a matter of public concern as a citizen, the public employee is exercising a cherished First Amendment right.” Taliaferro v. State, 235 Mont. 23, 29, 764 P.2d 860 (1988).

MISSOURI

Missouri is an interesting case example because the written code provides very broad protection, but the case law narrowly applies the language to diminish the scope of protected speech. The state constitution says that, “no law shall be passed impairing the freedom of speech, no matter by what means communicated: that every person shall be free to say, write or publish, or otherwise communicate whatever he will on any subject, being responsible for all abuses of that liberty…” Mo. Const. Art. I, § 8. However, the state appellate courts allow public employees to be publicly reprimanded for speech made in government forums under the idea that such punishment does not impinge free speech rights because the employee was ultimately not deprived of any of the privileges of his office. Vorbeck v. McNeal, 560 S.W.2d 245 (Mo. Ct. App. 1977). A troubling aspect in this case is the appellate court did not address at all the potential chilling effect such punishment may have on employees who speak on public matters.

Police officers and freedom of speech (part one)

State attorney and LEAP Speaker Jay Fisher has written an essay about the rights and duties of U.S. police officers who criticize the prohibition of marijuana, cocaine and other illegal substances. Part one provides a legal overview and also examines the rights of federal government employees. Part two examines free speech law in five different states: Georgia, New Hampshire, New York, Montana and Missouri.

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It should come as no surprise that American law enforcement professionals who care to speak out publicly against the drug war may hesitate to do so. Such a position runs contrary to the public positions of just about every police agency. Officers may fear retaliation and possible termination for taking such a contrary view. Thus, police should have a basic understanding of what speech will be protected in the event they want to speak on this topic publicly.

The basis for all protections of speech in the United States is the First Amendment within the Bill of Rights: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” The broad protections of this Amendment have been extended to the states via Section One of the Fourteenth Amendment to the U.S. Constitution: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States…”

However, it is now well-established law that public employees do not enjoy the same protections that a private citizen would have when trying to speak out on certain topics (such as the drug war). The reasoning for this is sound – to promote effective delivery of services, public employers must maintain efficient operations. Conduct by employees that disrupts morale or calls into question the agency’s integrity would impinge that goal.

What emerges from the competing interests of free speech protection and public employer service delivery is the proverbial “balancing test” seen in American courts: how to account for agency interests versus the individual’s rights.

Further complicating this analysis is the federal versus state government models in the United States, and the different protections afforded citizens of different states. Two obvious implications arise from these concerns. First, the United States Supreme Court may set a limit beyond which a state cannot impinge a public employee’s free speech; however, the state may afford greater protection of public employee speech than what is permissible under federal law. Second, the states afford different levels of protection to public employee speech – what may be protected in New Hampshire, for example, is not protected in Alabama.

All these competing interests create a hodge-podge of directives which guide what public employees may or may not publicly comment on. An analysis of the fifty states’ laws on this topic plus the position of the federal government would be cumbersome and beyond the scope of this analysis. However, below are some examples which show the breadth of laws which affect public employees vis-a-vis public speech on important topics.

UNITED STATES SUPREME COURT POSITION

The most recent ruling on public employee free speech relative to public interest issues was stated in Garcetti v. Ceballos, 126 S. Ct. 1951 (2006). This case basically reaffirmed the old standards articulated in earlier decisions that the First Amendment will not insulate a public employee from discipline if he or she speaks out on an issue pursuant to his or her official duties. The Court specified that if an employee speaks not as a private citizen, then his or her speech is not protected; however, if the individual spoke as a private citizen, then the speech may be covered by the First Amendment. The Court further stated that a public employee does not speak as a private citizen on an issue of public concern when they speak pursuant to their official job duties.

Thus, the key analysis falls within the definition of “pursuant to official job duties.” While the Court did not establish any defined parameters as to speech pursuant to official job duties, it did hold that the First Amendment will offer some protection when a public employee is speaking privately about a legitimate public concern.

FEDERAL GOVERNMENT WORKERS

The federal government would address matters regarding employees who speak publicly about special interest matters under the Garcetti standard elicited above. However, it is important to recognize that Garcetti did not arise in a vacuum. That decision – and indeed the whole concept of a balancing test – arose from recent precedent. The two most important of these are Pickering v. Board of Education, 391 U.S. 563 (1968) and Connick v. Meyers, 461 U.S. 138 (1983).

While the details of these decisions are beyond the scope of this analysis, it is important to recognize what these decisions said to guide government employers when evaluating employee speech on public matters. If the employee is not speaking of matters specific to his or her agency, and is speaking in a private citizen's capacity, that language will be protected:

When a public employee’s speech is purely job-related, that speech will not be deemed a matter of public concern. Unless the employee is speaking as a concerned citizen, and not just as an employee, the speech does not fall under the protection of the First Amendment. Buazard v. Meredith, 172 F.3d 546, 548 (8th Cir. 1999).

Texas should legalize marijuana

William Martin has written a lengthy article about why Texas should legalize marijuana.

S.F. Police Chief Hints at Marijuana Legalization's Benefits

San Francisco Police Chief George Gascon held a press conference Wednesday to tout the department's recent raids shutting down illegal marijuana grow houses in the city.

Interestingly, the first question from a reporter was about whether legalizing marijuana could prevent the devastating house fires that sometimes result from illegal grow operations.

The good chief answered by noting how when alcohol prohibition ended, lots of the associated problems like violence and crime went away.