/4 But government employees have SOME limited First Amendment rights with respect to their employment. Those rights are related to, but not the same as, the First Amendment rights that we all have not to be punished by the government for speech.
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/5 There is, naturally, a multi-factor test with sub-factors and exceptions and nuances. How else would we lawyers stay employed? Here's a post roughly describing it in a case involving a college professor.https://www.popehat.com/2013/09/05/ninth-circuit-clarifies-first-amendment-rights-of-public-university-professors/ …
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/6 The first step of the analysis would be to ask if Strzok is speaking on a matter of public interest. If not -- if it's purely matters of private or internal interest, like whether a particular supervisor is kind of a jerk -- then it's not protected, game over.
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/7 But talking about the candidates for President is a matter of public interest. So Strzok passes that part of the test. Next part -- was he speaking as part of his job duties? If so -- if he wasn't speaking in his private capacity - it's not protected by the First Amendment.
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/8 Here, contrary to impressions, it's not the FBI's job responsibility to shit-talk politicians. So Strzok passes that part of the test. (Note that other laws -- whistleblower protections, for example -- might protect speech uttered on-the-job.)
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/9 So, Strzok makes it to the touchy-feely rainbows-and-unicorns "balancing test,," which balances the employee's interest in the speech against the employer's interest in an orderly, harmonious, effective operation.
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/10 It's not the easiest case ever. Talking about candidates for President is absolutely core First Amendment stuff. But the FBI has a very strong interest in the appearance of investigator neutrality as to subjects of a federal investigation. These are competing factors.
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/11 The best argument for Strzok is that these were private one-on-one communications about personal views, not public statements on Twitter or something, and that they were about subjective feelings about a Presidential candidate. ...
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/12 The best argument against Strzok is that these were on FBI text networks, susceptible to being disclosed later and undermining FBI credibility, and suggested partiality in pending FBI investigations. I suspect Strzok probably loses this.
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Replying to @Popehat @emptywheel
It was very stupid of him to do this... of all people he should've known to have a burner phone for his affair, right?
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It is my very firmly held (tho based on an admittedly limited sample) that FBI agents have shit OpSec, presumably bc they think they're immune from any adversarial threat.
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