Political appointee fired for comment on gays

[Greg Magarian]

I think John is right to say that something more than knowledge
underlies the difference we place between act and omission in this
setting, although I do think the invisibility of the omission is what
obviates the need to think about the deeper principle most of the time. 
I don't think the difference between affirmative and prohibitive
injunctions explains the dichotomy; courts know, in general, how to
order people to do things.

I suspect what's really at issue is the existence of a clear basis for
the decision in question.  If, as John posits, an elected official
avowedly refuses to appointee someone because the potential appointee
said bad things about gays, then yes, I think the spurned hire at least
a potential 1A claim (more on that hedged bet in a moment), because we
know that the Governor's disdain for the person's ideas was the "but
for" cause of the refusal to appoint.  Most of the time, though, hiring
decisions -- and book buying decisions -- don't work that way.  A
decisionmaker may commit to one of many options for all kinds of
reasons, and usually does so for a combination of many.  The problem,
most of the time, isn't just that we don't know why the Governor
appointed X instead of Y; it's that, even if we did know, we wouldn't
have a good basis for judging the reason for the decision.

In contrast, when the Governor fires an appointee, or the library gets
rid of a book, the range of possible reasons for the action has narrowed
considerably.  Once a decisionmaker has committed to a choice, she
generally doesn't break that commitment unless something prompts a
change.  In addition, helpfully, she usually has some administrative
obligation to explain why she's making the change.  Thus, we get both
increased clarity of purpose and avowal of purpose.

Now, getting back to the question whether the Governor who avowedly
hires or fires the appointee based on a political statement has a
justification for doing so: I think the answer depends on something like
the Rust-Velasquez "government as speaker-government as patron"
distinction.  Of course elected officials get to take politics into
account in hiring policymakers.  That's the "government as speaker"
model: I'm hiring you to help implement my policies.  That's why a
Republican Governor doesn't have to hire Democrats as policy advisers. 
But in the case we're talking about, I don't believe that justification
applies.  An appointee's statement about something entirely outside his
policymaking purview doesn't implicate an interest -- the interest in
making effective policy -- that we allow to trump the appointee's 1A
interest.  John's point, I think, is that the Governor still has a
powerful interest in avoiding political fallout from the appointee's
statements, and I agree.  I even agree that such an interest relates in
a meaningful way to effective policymaking.  But I don't think the
relationship is clear or direct enough to justify a further limitation
on the appointee's 1A rights.  I also don't think firings for political
reasons will be justified very often, because generally a Governor isn't
going to find out something salient (in the Rust sense) about a
policymaking appointee's commitments late in the day.

Gregory P. Magarian
Professor of Law
Villanova University School of Law
299 N. Spring Mill Road
Villanova, PA 19085
(610) 519-7652
>>> "J. Noble" <jfnbl at earthlink.com> 06/18/06 1:56 AM >>>
At 8:19 PM -0400 6/17/06, Greg Magarian wrote:

>>But the
>reason the issue wouldn't have arisen is that no one would have known

Let's assume everyone did know -- the Governor announced the 
appointment of Jones, adding that Smith was his first choice, and far 
and away the most qualified person for the appointment, but that he 
refused on principal to appoint anyone who expressed the view that 
homosexuality was deviant behavior. Assume it's captured on tape by 
all three networks. Think you have a 1A claim?


Take the same approach to the librarian's announced refusal to 
acquire books that depict homosexuality as other than loathsome. Is 
that a 1A violation; or is he, as well as the librarian who 
"de-accessions" books that depict homosexuality as part of human 
nature, presenting a political choice -- fire me if you don't like 
the way I do my job; or tell me how to do my job, and I'll quit if I 
can't live with it.

In both cases, it seems that the "reason the issue wouldn't have 
arisen," is that the courts have no way to justify an affirmative, as 
opposed to prohibitive injunction. The court might enjoin the banning 
of John Rechy's "City of Night," but it can't order the librarian to 
buy a copy.

What is the constitutional difference between tossing a book and 
refusing to buy it? -- It's a banned book either way. And what is the 
difference between refusing to hire and firing people who express 
views that the governor disagrees with? It seems like it is due to 
more than the fact that the passed-over plaintiff doesn't know he has 
a claim.

John Noble

At 8:19 PM -0400 6/17/06, Greg Magarian wrote:
>I don't think we can conceptualize an aspect of an elected official's
>power as a "right of association."  The Governor as Governor has powers
>and prerogatives of office; he has no greater constitutional rights
than
>any other citizen.  As John notes, those prerogatives include various
>kinds of authority to punish or reward constitutionally unprotected
>behavior, but protected speech is a different matter.  John is also
>right to emphasize that the Governor could have declined, based on
>Smith's antigay views, to appoint Smith to the position in the first
>place, and that wouldn't have raised a First Amendment issue.  But the
>reason the issue wouldn't have arisen is that no one would have known
>about the Governor's (in)action.  The same dynamic defines the
>difference between a library's decision to ban a book and a decision
not
>to buy the book in the first place: we can't correct what we can't see.
>There may or may not be good reasons for such an act-omission
>distinction in constitutional law, but the distinction certainly has
>practical importance.
>