Cross Posted at Legal Schnauzer
Does the freedom of expression guaranteed by the First Amendment to the U.S. Constitution apply to people who write blogs and work at the University of Alabama at Birmingham (UAB)?
The answer seems to be, "It depends on what you are writing about." That, of course, means the UAB administration has serious problems abiding by the Constitution. And we suspect UAB is not the only organization that has such problems around the country. In fact, we have written before about people who encountered workplace problems because of their blogs--here and here.
Regular readers know that I was unlawfully terminated at UAB, primarily because I write a blog about public corruption in Alabama, especially the Bush Justice Department's political prosecution of former governor Don Siegelman. So imagine my amazement the other day when I discovered that UAB had issued a press release touting one of its employees' personal blog.
Stephanie Rauterkus, an assistant professor in the UAB School of Business, writes a blog called 365 Days on a Budget. What's the blog about? Here is how UAB describes it in a press release:
"I wanted to revisit my family's budget and see how we could improve, and I wanted to keep a written record so that we would have something to look back on in the future," Rauterkus says. "I thought about it some more and the educator in me said 'I'll write about it on a blog so that others can learn what I learn as I go through the process.'"
Rauterkus' blog, 365 Days on a Budget, was started July 5. Every day, the professor, wife and mother of two updates readers on her struggles and successes as she attempts to balance both budget and life. The tagline for the website describes it as a chronicle of the daily challenges and triumphs of a "regular" family as it works to achieve its financial goals by keeping a watchful eye on spending.
It's hard not to notice the similarities between Rauterkus' blog and my blog. Hers, like mine, is truly a personal blog, hosted at Blogspot and not on a UAB server. Hers, like mine, addresses a matter of public concern--personal finance in her case, public corruption in mine. Both of us started our blogs with the desire to help educate the public about important matters. Rauterkus says she started her blog "so that others can learn." The tagline on my blog notes that we will be addressing corruption in the justice system and will provide information on "how you can avoid being cheated."
Stephanie Rauterkus essentially is providing "news you can use" for the general public, and UAB praises her efforts in a press release. I did much the same thing and got fired.
Isn't that interesting?
Here's something we should ponder: Many Americans, including Dr. Laura Schlessinger, do not understand the protections offered by the First Amendment. Many Americans think it means you have the right to say almost anything you please and not suffer consequences for it. Dr. Schlessinger, who recently had sponsors bail out after she used racially offensive language on her radio show, found out that's not what it means.
The First Amendment indeed allows Americans to say all kinds of things that some citizens might find offensive. But it does not preclude those who are offended from responding in a lawful fashion--boycotting your product, dropping sponsorship of your radio show, criticizing you in the press, etc. And if you work for a private employer, one who doesn't like what you've said, you can lose your job over it.
In the employment arena, the First Amendment only protects those who work for government employers--as Stephanie Rauterkus does, as I did. Even then, not all speech is protected. In general, it has to be speech about matters of public concern. Someone who works for the IRS and writes on his blog that he thinks his supervisor is fat, ugly, and stupid might want to update that resume. A court is likely to find that the personal appearance and attributes of an IRS supervisor are not matters of public concern.
Stephanie Rauterkus clearly is writing about matters of public concern, and so was I. And that raises this question: Why does she still work at UAB, while I'm unemployed?
It's pretty easy to figure out, actually. UAB's own grievance committee found that I should not have been terminated. I sat through the entire four-hour hearing, and no evidence was presented that I even should have been disciplined. UAB's own IT expert admitted I never wrote the first word of my blog on my work computer.
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