lukegilman.com : The Blawgraphy
Life of a Law Student, University of Houston Law Center

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Please note: I'm no longer updating this particular blog, but keep it around for archival purposes. Visit me at the current blog at www.lukegilman.com

Blogging While Publicly Employed

Via Legal Theory Blog, Paul M. Secunda, Blogging While (Publicly) Employed: Some First Amendment Implications

While private-sector employees do not have First Amendment free speech protection for their blogging activities relating to the workplace, public employees may enjoy some measure of protection depending on the nature of their blogging activity. The essential difference between these types of employment stems from the presence of state action in the public employment context. Although a government employee does not have the same protection from governmental speech infringement as citizens do under the First Amendment, a long line of cases under Pickering v. Bd. of Education have established a modicum of protection, especially when the public employee blogging is off-duty and the blog post does not concern work-related matters.

Describing the legal protection for such public employee bloggers is an important project as many employers recently have ratcheted up their efforts to limit or ban employee blogging activities while blogging by employees simultaneously continues to expand. It should therefore not be surprising that the act of being fired for blogging about one’s employer has even led to a term being coined: “dooced.” So the specific question that this essay addresses is: do dooced employees have any First Amendment protection in the workplace? But the larger issue examined by implication, and the one addressed by this Symposium, is the continuing impact of technology on First Amendment free speech rights at the beginning of the 21st Century.

This contribution to the Symposium proceeds in three parts. It first examines the predicament of private-sector employees who choose to blog about their workplaces. The second section then lays out the potential First Amendment free speech implications for public employees who engage in the same types of activities. Finally, the third section briefly considers a potential future trend in this context from Kentucky involving government employers banning employee access to all blogs while at work.

As a blogger who is publicly employed, this is rising to the top of the reading pile.

Those Who Are About to Take the Bar, We Salute You

Before you file that missing persons report – if you happen to know any recently graduated law students who have exhibited a marked decline in personal hygiene over the last 6 weeks or so, there’s a very good chance they will disappear entirely over the next 3-4 days or so. Do not fear, they will then re-emerge like butterflies in all their bacchanalian splendor to reclaim the lives they once knew.

To those about to sit for the February bar in the next few days (February 24. 25, and 26 here in Texas), we salute you! and though you won’t need it, good luck!

Memoir of John Hill as Texas Attorney General

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Texas Lawyer brought my attention to the publication of Ernie Stromberger’s John Hill for the State of Texas. John Hill, who collaborated on the book before his death in 2007, also served as Secretary of State and Chief Justice of the Texas Supreme Court in his long career.

I had the pleasure of talking with Justice Hill before he passed on when I met him at a reception Winstead held for UH law students. He had a seemingly never ending reservoir of stories, but looking back the most remarkable aspect was that he never really let on who he was. He mentioned that he ‘had been a judge’ and had ‘worked for the state’ for a while. It would seem odd to describe such a larger-than-life personality as humble, but so he was.

Dilbert Encounters the Law

Scott Adams has a gift for capturing the ennui of cube-life in Dilbert; no less perceptive when cube-life meets the law. The following series had me rolling.

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Legal Heroes: John Marshall Harlan

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The Boston Globe’s Peter S. Canellos has a laudatory piece on the Supreme Court Justice John Marshall Harlan the elder (his son also sat on the Supreme Court) in In 1800s, a rights icon on the bench. The elder Harlan is a hero to me as well, for most of the reasons Canellos cites but also for holding a special place in my heart as an evening student. As I’ve posted previously, for over 20 years Justice Harlan would leave his post at the Supreme Court around 7pm and walk over with another Justice to Columbian University in Washington, D.C. where he taught constitutional Law, domestic relations, commercial law, evidence, torts, and property to the assembled group of law students, most of whom worked as government clerks during the day.

My sense is that the same egalitarian spirit that prompted his famous Plessy dissent, bestowed in Harlan the instinct that there should be no barrier to a legal education for those who possessed the requisite desire, fortitude and potential and that a Supreme Court Justice’s evening was not poorly spent in helping to make that possible.

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