Freedom of Speech is for the Weak

In what has to be one of the more curious examples of judicial reasoning, a judge today refused to issue an injunction to the city of Longmont to stop them from investigating an employee, Glenn Spagnuolo for using a city cell phone to call an on-air radio talk show. Spagnuolo claims the investigation launched against him is retaliation for the fact that he phoned a conservative talk show to defend CU professor and l'enfant terrible (with l'enfant being the operative word) Ward Churchill. Spagnuolo has not endeared himself to city officials because he often attends left wing rallies and demonstrations including a speech by Churchill and proclaimed on the air that he had no sympathy for police officers who are shot in the line of duty.

Spagnuolo argued that the investigation would have a chilling affect on his free speech rights, to say nothing of the rights of other employees who might feel that they too would be investigated merely for the positions they took in public. However reprehensible Spagnuolo's views, the Supreme Court has ruled that a locality could not fire an employee merely for his or her public utterances. A woman who worked in a Texas sheriffs office had filed suit to reclaim her job after she was fired for praising the Hinckley assassination attempt on President Reagan. Although Spagnuolo used his city provided cell phone, he was allowed to use it for personal calls as long as he reimbursed the city and he phoned the radio show when he was not working. The city manager claims that Spagnuolo's comments have hurt the city's relationship with the police department but the chief of police has assured her that they have not. So what's left as grounds for the investigation? That Spagnuolo may have attended a Churchill speech on city time. Meanwhile the city claims none of this is relates to Spagnuolo's beliefs. So Spagnuolo asked a judge to halt the investigation. But the judge said no, Spagnuolo didn't need protection because he was a strong willed individual.

"Spagnuolo's steely demeanor regarding an investigation of him by his employer, the city of Longmont, was cited Friday as a final factor in a federal district judge's decision to allow the investigation to continue. While elements of the investigation are "arguably unreasonable," Figa said, Spagnuolo was not challenging its scope. Testimony in the hearing included details of Longmont's questioning of Spagnuolo's co-workers about his use of vacation time to travel to national protests. Also, the judge noted, the city has not yet taken any disciplinary actions against the plaintiff.

"It's sad," Spagnuolo said of his reaction to the decision. "I was hoping my government would protect me. Instead, my government told me I have the courage to protect myself.

"Finally, plaintiff is not intimidated by the city and therefore his free speech is not chilled," said U.S. District Judge Phillip Figa. "It is unclear whether the average person - or someone perhaps not as brave - would be so uninhibited."

So let's see if we can straighten this out. If Spagnuolo were a more timid person than the judge might have considered issuing an injunction to stop the investigation. But because Spagnuolo is not, there is no need for the Court to protect his speech rights against governmental monitoring and investigation. That's intersting since I don't recall there being language in the first amendment about it applying only in cases where individuals seemed particularly timid and vulnerable to state influence. Is this what we mean by judges who make up the rules as they go along without resorting to the Constitution? Somehow I doubt Tom Delay will be at the forefront of Spagnuolo's case railing that Judge Figa will one day have to answer for his actions.