Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
(First Amendment to the United States Constitution)
The story was reported on extensively in local media and picked up nationally and internationally. The 39-page order from district court judge John Sedwick can be found here, for those inclined to dive into the weeds of First Amendment employment law.
Otherwise, the basic gist is this:
From 2006 to 2018, I was a good lawyer and valued longtime employee of the Alaska Attorney General's Office. I had no problems at work---other than the fact that I was unwilling to stop complaining about Trump on the internet.
I started this parenting and lifestyle blog in 2014, but in 2015, I began to recognize the existential threat Trump posed—and still poses—to democracy, and felt compelled to keep calling it out. I understood the risks to my personal and professional life that this involved, but knowing I was within my legal rights, I naively assumed that the government would honor them. (Ironic, I know).
Regardless, I felt congenitally incapable of shutting up, and was unable to stop myself from identifying daily the havoc Trump was wreaking. As the main income-earner in my four-person family and the only one with health insurance, it was a big gamble.
Fast forward to December 3, 2018, when Trumpian acolyte Mike Dunleavy took office as Alaska's 12th governor, and fired me within 20 minutes of being sworn in.
My termination came on the heels of a forced resignation letter that Dunleavy's Chief of Staff, a Karl Rove-type operator named Tuckerman Babcock, had demanded from me and hundreds of other non-unionized state employees. This was an unprecedented, norm-shattering flex by an incoming administration. I immediately contacted the ACLU, which filed a lawsuit on my behalf the next month. The ACLU also brought a companion case for two state psychiatrists who refused to submit their resignations at all.
This past Thursday, Judge Sedwick, who was appointed by George Bush, issued a long order in my case making a few important findings under complicated U.S. Supreme Court precedent governing public employees' free speech rights. (The order came three months after a ruling in the psychiatrists' case from the same judge that the resignation demands were an unlawful "patronage scheme" or loyalty pledge and therefore inherently unconstitutional).
Because I was not in a union, I lacked automatic constitutional protections in my job. So the question became whether I could be fired for political (associational and free speech) reasons. The answer would be yes, if I were a "policymaker" as that term is defined in this line of cases. But I was not a policymaker, so the question next became whether the government could prove that my personal speech caused legitimate and sufficient “workplace disruption” to refute the presumption that Dunleavy and Babcock fired me because they disagreed with my views.
They couldn't show that. And because they couldn't, the judge concluded I had been unconstitutionally fired. And because the state had fired me unconstitutionally, it acted in bad faith, giving rise to money damages under my claim for a breach of the covenant of good faith and fair dealing in Alaska employment law. So the state violated state law as well.
Judge Sedwick recognized that had the state gone about my termination differently, they could reasonably have taken "adverse employment action" against me for my blogging. But given the evidence in the case, this is a bit like saying to a burglar that had he not broken into a house and stolen things, he wouldn't have been arrested for burglary.
The other interesting legal angle here, in both cases, was the judge's analysis of the qualified immunity doctrine.
Qualified immunity is what protects government employees from personal liability in their work. In practice it functions more like absolute immunity, because it's very hard to lose. You have to do something really bad and pretty much knowingly bonkers.
In the psychiatrists' case, Judge Sedwick found that the resignation scheme was bad enough to strip Dunleavy and Babcock of qualified immunity and make them personally liable for their conduct. Not so in my case, which didn't surprise me. As I said, it's very rare for a defendant to lose qualified immunity, and the government has an interest in a robust qualified immunity doctrine; otherwise no one would ever risk working for the government.
Judge Sedwick's order in my case resolved (at least at the trial court level) what's called the "merits" phase of the lawsuit, and the next phase is damages. The constitutional violations entitle me to injunctive and declaratory (non-monetary relief), and the state law claims entitle me to monetary damages. I'm really not sure where that phase will go--that's very much to be decided, as is the state's appetite for an appeal.
In any event, I've now had some time to process the psychological and emotional toll of this "victory."
I put victory in scare quotes because I'm not sitting here rejoicing. I’m not running around the bases after a walk-off grand slam or dining out on the press coverage. Ok, fine, I am dining out on the press coverage.
But I'm not happy. Far from it. It took three years and ten days to make one single point about free speech. It took three years and ten days to get a federal judge to say yes, this was illegal, and yes, it was unconstitutional.
As a government lawyer myself, I’ve always known that democracy is fragile, justice is glacial, and the constitution is not a self-executing document. In other words, it means nothing if it's not enforced. The problem is, it's hard and expensive to enforce, and there isn't much incentive to do so.
Being a litigant is time-consuming, brutal, and humiliating. By the time the average citizen catches up with governmental misconduct, the bad actors have collected its spoils, are long gone, and have paid off the victim with public money. What do they care? Nothing but media shaming and excoriation and the occasional financial penalty seems to make even a dent.
But my hope is that this case sends a few messages beyond "Trump-bashing lawyer mostly wins free speech suit," as a reporter at Bloomberg Business News so wryly and accurately put it. And while it's funny that my characterization of Trump as a "fascist cantaloupe" and "Edward Cheeto-Hands" is now forever enshrined in the federal jurisprudential canon, it's not the most important thing.
I hope this case makes future administrations think twice before demanding that everyone pledge loyalty to them or relinquish their jobs or even careers.
I hope it gives non-unionized state employees in Alaska some measure of protection in their jobs, and some assurances that they do not all unequivocally check their constitutional rights at the door just because they work for the state.
I hope it encourages good citizens to start and continue careers in government. Most of all, I hope it encourages people to continue to speak up and push back against totalitarianism, autocracy, and erosion of the rule of law, because as every scholar of authoritarianism knows, your voice is the only weapon you have in that battle.
I was in a rare and unique position to do something grandiose to prove a point. I was a practicing government lawyer and knew my rights. I had a blog with a good following and was self-destructive enough to use it to make what I thought were important observations about a very dangerous situation. And the people in power were reckless and arrogant enough to approach my firing in the perfect way to subject them to maximum liability.
In other words, the whole thing was teed up for a great free speech case.
But it came at a huge personal cost. I lost friends and colleagues. I lost what little faith I'd had in systems and structures of employment, democracy, and personal loyalty. My mental health was (and remains) shaky. I absorbed lots of online vitriol, most of which I tried—often unsuccessfully—to ignore. For three years, ten days, and counting, I’ve felt afraid, ashamed, and very much alone.
People have been thanking me for fighting the good fight and for sticking my neck out and standing up to bullies. I didn't do it because I wanted to. I did it because I could, and because I had to. I'd do it again in a minute.
