Thursday, April 12, 2012

Freedom of speech and employee speech in Guillen case

Many people are talking about Ozzie Guillen’s mere five day suspension as manager of the Miami Marlins for talking to the press about his affection for Fidel Castro.  Some are saying that Guillen has a right to express his political views and should not have been suspended.  But, this isn’t a case of freedom of speech, although there is growing concern about the line between company employee and private lives.

In a recent interview with Time Magazine, Guillen said that he “loves Fidel Castro”.  It is something he expressed a few years ago while working for the White Sox.  It is hard to believe that Time interviewed him because he was just another immigrant from Venezuela that made good.  If that was the case, he would have had wider discretion about his freedom of speech.  Time was interviewing him because he was a major league manager of a baseball team.  In that role, he has to put on his employee face and give the answers that support his team and the sport.  Just as any employee would if being interviewed by the magazine or talking to a customer about the products or services the company sells.

Those that follow the Supreme Court know well that the justices are always looking for the line between the issue they are judging and everything else.  At what point did the defendant cross the line?  Or, if the case that is in front of the court is a violation of constitutional rights, where does the right start and end?  In Guillen’s case, where is the line between his private life and that of manager of the Miami Marlins.

There are other situations around the country that aren’t as well known.  Here in Michigan, a teacher claims she was fired from a charter school because she was helping raise money for the Trayvon Martin family.  In another part of the country, a military man is being drilled out of the service because of his criticism of the current military policy of the military and the administration.  On a more personal level, we have all been tempted to say something at work, but have not for fear it would be something we regret.

The truth is, there isn’t a blanket right to express your personal thoughts whenever you want.  Remember, rights are not absolute.  Employees make a choice to work somewhere even in bad economic times when there are few choices.  Employers, as in the case of Guillen, have broad discretion when it comes to controlling the speech of their employees while on the job.  And, it has nothing to do with the First Amendment.  The only time the line between the freedom of speech and an employer’s time clock becomes blurred is when there is illegal activity or when the employee is clearly not on the clock.

But, what we all must be on guard about is when an employee isn’t on the job or when not representing the company at the time.  Corporate America would love to control our every action to assure that their image is solid.  Most companies, though, realize that it is better to take a softer line when an employee isn’t on the job out of respect for the employee’s privacy rights.  (Remember, there is a right to privacy in our legal system and community.)

Guillen, in my opinion, may end up being fired because of the outrage of the Cuban community in Florida and across the country for his remarks in support of the Cuban dictator.  No matter how good Guillen thinks Castro is, he is still a dictator.  As an employee, speaking as an employee, Guillen should have kept his mouth shut until he was off the clock. 

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Wednesday, April 11, 2012

Grand jury rights for all

One of the last hold outs of the numerated rights guaranteed in the Constitution that haven’t been extended to every individual through the states is a grand jury.  It just might be time for that to happen.

The Fifth Amendment in the Constitution in part states:

"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury…"
The original Constitution, before the 14th Amendment, was interpreted to be applied only to the Federal Government.  Before the 14th, the Supreme Court consistently allowed the states great leeway in the rights that they allowed and those that they did not.  But, the 14th Amendment changed all of that, well, most of it.  Speech, assembly, trial by jury and many other things that are taken for granted now, where not always allowed by the states. 

Now, in the Trayvon Martin case in Florida may be just the case needed to push the guarantee of a grand jury to the Supreme Court.
A special prosecutor was appointed by Florida’s governor to investigate the shooting death about two months ago of a 17 year old by a neighborhood watch captain.  News media following the case have reported that the special prosecutor appointed has never used a grand jury in her 25 year career.  In the last couple of days, she has stated that she will not be using a grand jury and the decision to indict will be her’s alone based the evidence.

Rallies and marches have taken place bringing nation attention to the case.  As a result, the news media has reported the various details about the case.  Many of the details released swung in support between the shooter and the victim.  For the observer, it has been confusing at best and impossible to follow at worse.  The need for a special prosecutor had become apparent from early on and the governor did the right thing in appointing one, if the move is honest, sincere and not politically motivated. 
There is no doubt that an unbiased, intelligent prosecutor could gather the evidence and organize it in a way that would make it easier to understand.  But, we do have checks and balances in our system of government. (Hey, in a nod to a previous post, the term “checks and balances” can’t be found in the Constitution.)  In every function of government, we need a process that checks the details and develops an opinion on the evidence from someone that isn’t invested in a particular outcome.  The special prosecutor will have an investment in the outcome, whether personal pride or political.  If a grand jury were to review the evidence and issue an opinion, the community could have a much better confidence in the outcome.

States though, don’t have to present evidence to a grand jury.  In many cases, prosecutors are allowed to study the evidence and issue an opinion to indict or not.  First, this is a situation where even though it isn’t a clearly stated right in the Constitution for states to call a grand jury, states should.  By adding the grand jury to state judicial systems that don’t use them now, everyone in the country can enjoy the same rights in their own state that were intended solely for our relationship with the Federal government.
Additionally, depending on the ultimate outcome, this could be the case that sets up a challenge.  The defendant, if the shooter is indicted, could appeal to the Supreme Court for protection under the Fifth Amendment.  The lawyers are on record of implying that to indict without a grand jury would be a mistake.  (Since the writing of this blog, the current lawyers have withdrawn from the case, but the issue of indictment without a grand jury is there.)

It would be better to just apply the wisdom of the Constitution to the states.  The confidence in the local community’s government would be so much greater.
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Monday, April 9, 2012

The Constitution is over rated

Every time we get into a discussion about rights, we argue over if it is allowed by the Constitution of the United States.  It has become our go to document on the rights of human beings.

But, think about these issues.  Rick Santorum thinks that we don’t have the right to privacy because the word privacy isn’t mentioned in the Constitution.  Also, don’t look to the Constitution to insure that you are innocent until proven guilty, it isn’t there.  While the Constitution outlines many ways that States can’t deny someone to vote such as by gender or race, the document doesn’t guarantee the right to vote.  As a final example, but not the end of the misconceptions, the words “separation of powers” can’t be found in the Constitution.

The Constitution may be a guide on our rights, but is not the final word.  If we were to only have those rights that are numerated in the document, we would limit ourselves.  Even if we made an attempt to list every right, it would still be an incomplete list.  Many of the people that helped write the Constitution were leery about adding the “Bill of Rights” because there were concerned that it would be seen as a complete list.  They didn’t see the document as the final say on our rights, which we retained, but limiting what the government could do.

Need an example?  Remember a few years ago when cities around the country were taking property and giving it to developers?  The Supreme Court’s interpretation of the Constitution, led by the strict constructionist, said that property could be taken and given to developers that would increase the tax base of the city.  In just a few short months, states past laws that made it illegal.  Even though the Constitution seemed to allow the taking of property, people across the country realized that we had more rights than listed in the old document and enacted laws that guaranteed those rights.  (This is happening again in our country.  Property is being taken by the states of Texas and Oklahoma for the pipeline.  Something the Republicans have wanted to do for a long time and that Obama was trying to protect until he reversed course.)

Something is over rated if it is seen as being more than it is.  The Constitution of the United States is a great document, one that every country should adopt.  But, it is not the final word on our rights, it is just the base.  We have plenty more than listed and we should work with legislatures to ensure those rights.

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