Alaska Twitter storm shows ‘free’ speech can be costly

An international news story about the alleged tweets of an Alaska Assistant Attorney General (AAG) has some Alaskans fretting about free speech. They needn’t. Once you tease out how the First Amendment applies to public employees, the rest is common sense.

Last week The Guardian, a British newspaper, published evidence linking a current Alaska AAG to tweets ranging from racist, to espousing violence against unlike-minded folks, to recommending a death penalty for transgender reassignment surgery. If true, although he was posting under a moniker, the AAG demonstrated a notable lapse of intelligence by linking his tweets to enough personal data that he was persuasively identified.

The Alaska Department of Law has opened an investigation. An ACLU of Alaska spokesperson told the Anchorage Daily News that state employees have the right to free speech. Yes, they do, but it’s limited in relation to their employment.

The First Amendment protects us from the government abridging our speech. The U.S. and Alaska Supreme Courts have decided that right is different when the government is our employer with which we sought a mutually beneficial employment arrangement. An employer shouldn’t have to pay employees for speech that undermines its mission. Especially when that employer – the government – is supposed to represent everyone.

For a public employee’s speech to be protected from their employer’s response, it must be about a matter of “public concern.” The U.S. Supreme Court held that in Pickering v. Board of Education (1968) and our state supreme court did in Wickwire v. State (1986). If the speech isn’t about a public concern, it’s not protected.

The courts haven’t defined public concern, but our state supreme court, in Alaskans for a Common Language (ACL) v. Kritz (2007) said,

“From a public policy standpoint, it makes sense to encourage employee speech about the operations of government since employees often are in the best position to offer informed opinions.”

This suggests some speech about government operations might address a public concern.

Even if the speech is about a public concern, the speaker isn’t home free. Pickering held a court must balance the interest of the employer in delivering the public services it performs against the individual employee’s interest in the speech. Alaska adopted this balancing in Wickwire.

Racist and violence inciting tweets do not address the operations of government or any other public concern as meant by the courts. Our “alleged” tweeting AAG represents the Department of Corrections, including civil rights cases. So, he also loses the balance test when the court weighs the critical mission of the corrections department, which is undermined by public mistrust, against the tweeter’s interest in expressing racist, violent opinions.

Libby Balakar, a former AAG who sued the state after she was fired for blogging “liberal” views under her name, wrote an ADN commentary about this matter. She doesn’t like the idea of the government monitoring the personal social media of its employees.

The government didn’t do that here. An international news headline brought the matter to everyone’s attention, including the Department of Law. That’s what can happen when you post on the internet – the equivalent of a giant neon sign in the sky that anyone with an internet connection can see.

Ms. Bakalar opined the state might have painted itself into a corner with her case and might not be able to fire the anonymously tweeting AAG for expressing his opinions, however vile. I disagree. Neither the state nor courts have to be that liberal and politically correct. All speech is not created equal. You can’t yell “fire” in a crowded theater, and it’s an assault to, by words, place another in fear of imminent serious physical injury. Courts are able to distinguish between “liberal” or “conservative” opinions and racist language and incitements to violence.

Another lawyer with “rather left-wing opinions” said of the alleged tweeting AAG, “he’s got a right to his opinions.” Yes, he does. But he doesn’t have a constitutional right to a government job and its benefits. When he seeks and accepts such a job, his speech is limited by the law governing public employee speech – or he faces the legal consequences.

If the DOL investigation confirms the content of the tweets and that the AAG posted them, I believe the state is on solid legal footing to take job action – including termination. The tweets here are unacceptable for someone paid to represent all Alaskans. They erode public trust in a government that would knowingly continue to employ such a person, and they undermine the government’s mission of public service. How can African American, liberal or transgender Alaskans trust the legal representation of such a person?

If the AAG posted the tweets, it can legally cost him his job. Some would argue it would be more costly if he kept it and the administration and the DOL lost public trust.

Correction: The initial published version of this commentary contained an error relating to the status of former Assistant Attorney General Libby Bakalar’s lawsuit with the state, which is still being litigated.

Val Van Brocklin is a former state and federal prosecutor in Alaska. She is a national trainer and writer on numerous legal topics including public employees’ rights, responsibilities and liabilities for their internet postings.

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