The ABA Journal is now reporting on a story that had been first reported in Mother Jones. According to MoJo, Deputy Attorney General Jeffrey Cox has a history of making inflammatory comments on Twitter and on his personal blog, ProCynic. He became involved in an exchange on Twitter with a MoJo staffer who had Tweeted that police might remove demonstraters from the Wisconsin state capitol building. A Twitter user, identified as JCCentCom, responded, "use live ammunition." In the subsequent corrrespondence, JCCentCom tweeted that the demonstrators were "political enemies" and "thugs" who were "physically threatening legally elected officials" and said, "You're damned right I advocate deadly force." (The MoJo story includes screen captures of the tweets, as well as prior on-line comments of a similar nature.) JCCentCom turned out to be Jeffrey Cox, an attorney in the Indiana AG's office.
After a brief investigation, the Attorney General's office reported that Cox had been fired:
Today the Indiana Attorney General’s Office announced that Deputy Attorney General Jeffrey Cox is no longer employed by this agency.
The Indiana Attorney General’s Office conducted a thorough and expeditious review after “Mother Jones” magazine today published an article attributing private Twitter postings and private blog postings to Cox.
Civility and courtesy toward all members of the public are very important to the Indiana Attorney General’s Office. We respect individuals’ First Amendment right to express their personal views on private online forums, but as public servants we are held by the public to a higher standard, and we should strive for civility.
Leaving aside whether the right way to characterize JCCentCom's postings is "incivil," the firing raises an interesting First Amendment question. Ordinary citizens can say pretty much what this attorney said and not be punished. Take the case of Watts v. United States, 394 U.S. 705 (1969). The defendant had announced that he would not report for the draft and said, "If they ever make me carry a rifle the first man I want to get in my sights is LBJ." The Court avoided the constitutional issue by concluding that the statute proscribing willful threats against the life of the president was not violated by hyperbolic statements like this. Nevertheless, reading Watts along with contemporaneously decided cases such as Brandenburg v. Ohio, 395 U.S. 444 (1969), yields a well established constitutional principle that the government cannot penalize private citizens for making hyperbolic threats, unaccompanied by a clear and present danger of violence.
The situation is different where lawyers are involved, however. There are some state court cases involving threats by lawyers, in which the courts summarily rejected the lawyers' First Amendment arguments. See, e.g., Florida Bar v. Sayler, 721 So. 2d 1152 (Fla. 1998) (sending adversary a newspaper article about workers’ compensation lawyers who had been murdered); In re Beaver, 510 N.W.2d 129 (Wis. 1994) (threatening to kill adversary); In re Belue, 766 P.2d 206 (Mont. 1988) (threatening to beat up public defender and shoot sheriff’s deputy). In general courts are not very receptive to lawyers making free speech claims, even in contexts in which ordinary citizens would clearly be privileged to say the same thing. Speech critical of judges, for example, is treated very differently where the speaker is a lawyer. And in the Gentile case, citing opinions by Judge Cardozo from the New York Court of Appeals, Justice Rehnquist revived the constitutional right/privilege distinction when he said lawyers representing clients in pending cases are subject to restrictions on speech that would be unconstitutional as applied to the litigants. Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991).
The fact that Cox was a government lawyer doesn't really simplify the constitutional analysis. Government employees have some rights to say outrageous things. In Rankin v. McPherson, 483 U.S. 378 (1987), for example, an employee of the county sheriff’s office heard that someone had attempted to assassinate President Reagan, and remarked, "[i]f they go for him again, I hope they get him." Applying the test from Connick v. Myers, 461 U.S. 138 (1983), the Court reasoned that the sheriff’s interest in the effective functioning of his office did not outweigh the employee’s right to speak out on matters of public concern. But then subsequently, in Waters v. Churchill, 114 S. Ct. 1878 (1994), the Court held that a public hospital employee could be fired for criticizing her department, because the state’s interest in the efficient operation of the hospital outweighed the employee’s free expression rights.
So what's the right resolution of this case? I'm not entirely sure what I think. When I was starting out as a legal ethics scholar I wrote a really terrible article -- bloated, overwritten, and poorly organized -- with the thesis that "the law in this area is a mess." I didn't know at the time that "the law is a mess" is not a suitable thesis for a long, turgid article. More to the point, I still think the law is a mess and don't have a good idea how to rationalize it. As a policy matter, I can see the public interest in believing that government lawyers aren't lawless thugs. On the other hand, I don't think people should be required to surrender their right to say intemperate things just because they have become lawyers (or government lawyers). I'll be interested to hear what people think about this case.