pageok
pageok
pageok
"English-Speaking American":

Denver Post:

Arapahoe County is threatening to fire a veteran Public Works employee for promoting the fact that he is an English speaking American."They claim it's offensive and I've been accused of discrimination and harassment, believe it or not, because of this," said Mike Gray, a heavy equipment operator with the Arapahoe County Road and Bridge Department for 16 years. The problems began last spring. Gray, 50, owns a lawn service business on the side. He was routinely driving to work in his pickup truck towing a trailer that he uses to carry lawn mowing equipment for his business. On the side of his trailer, the married father of two affixed a sign that reads "Lawn Services Done With Pride!! By An English Speaking American."The sign also gives Gray's phone number and the lettering is over a background of an American flag."There are a lot of people in the lawn service that are non-English speaking," Gray said. "Customers and different people were telling me that they have a hard time trying to communicate with them about the work they want done on their yards. I just want to let people know they at least can communicate with me when I do work on their property." Gray also wore a hat to work that says "U.S. Border Patrol," which he says was a gift from his son.

Arapahoe County officials told Gray the sign and hat must go or else. In a Nov. 10, 2005, letter, his supervisor Monty Sedlak wrote the following: "Some of your conduct ... is reprehensible and discriminatory to our non-English speaking and/or Hispanic workforce. You are in violation of ... guidelines which ensure a workplace free from harassment and sensitive to the diversity of employees." "You are required to permanently remove your cap from the workplace. It is offensive and harassing. Your business sign, if on work premises, must be completely covered at all times. This behavior is inappropriate and any further incidents of this nature may result in further disciplinary action up to and including termination of employment."

Gray has hired an attorney to fight the County on First Amendment grounds. Sorry, Mr. Gray, the government is your employer, and it may forbid speech at the workplace that it thinks is offensive to other workers, even if you think your boss is being hypersensitive (and personally, I don't see anything "harassing" about wearing a hat that says "U.S. Border Patrol," though I can see, in context, why some would find it offensive). What the government could not do is require you to cover your sign, or forbid you to wear your hat, outside the workplace.

On the other hand, the government may fire a prosecutor who attends racist meetings, given that having such a prosecutor on staff is likely to reduce public faith in the fairness of the justice system.

Yes, I'm troubled by the fact that the government, acting as employer, has such censorious powers. In the case of the prosecutor, it's pretty much unavoidable. In Mr. Gray's case, it provides another reason to support privatization of peripheral government functions.

Steve:
The hat is a bit much.
3.3.2006 8:34pm
Justin (mail):
Privatize public works because....it makes teaching first amendment and discrimination law hard? I don't get it.
3.3.2006 8:45pm
Justin (mail):
I mean, if you can replace PW with a private company, they were DEFINITELY going to fire this guy for advertising ANYTHING remotely political. If you think the government has stronger speech restrictions than private firms, you should take a few months off and work at a law firm. It'd be interesting to see if you were even allowed to continue blogging.
3.3.2006 8:47pm
John Jenkins (mail):
Privatize those functions because it gives the government fewer occasions to exercise said censorious powers. It wouldn't make First Amendment law any less complicated given that there must always be some core government employees.

This situation is a laughable illustration of how thin-skinned and pathetic we've become.
3.3.2006 8:49pm
Noah Klein (mail):
Prof. Bernstein,

Public Works is not a peripheral government job. I have heard you make this same rant so many times on subjects having nothing to do with that issue and I have resisted commenting because it would be off-topic, but no more. I believe you have said that education and now public works are inappropriate uses of the government's power. From where does this argument come? Where did you learn history? States were involved in education in the 18th century. States were involved in public works in 18th century. George Washington and John Adams called for a national university. Thomas Jefferson and Benjamin Franklin were instrumental in creating not only the public universities UPenn and UVA, but also their states' school system. The National Democrats of the 19th century were calling for the federal government to be involved to public works. Why is that not a basic function of government?
Where in your imagination is the legal or practical reason behind a state not buliding a road or not teaching its citizens. The reason the state took this up in the first place was because it needed to be done and it communal project. Policing is also such a communal project that needs to be done, but I doubt you'll say that the states shouldn't police their citizens. Do you see in the federal constitution some place where these two state functions were precluded? Do the state constitutions, including some from the 18th century, preclude the state government from conducting such duties? I really would like you to explain some legal justification for your consistent diatribes against the government fulfilling its responsibility. If you can't provide it, I would appreciate it if you would no longer make such statements that are off-topic and are policy issues not to be discussed on a legal blog.

Noah
3.3.2006 8:53pm
DavidBernstein (mail):
Deleted
3.3.2006 9:08pm
Enoch:
So... would he be in trouble if "se habla espanol" was on his sign?
3.3.2006 9:10pm
SimonD (www):
and personally, I don't see anything "harassing" about wearing a hat that says "U.S. Border Patrol," though I can see, in context, why some would find it offensive
It seems to me that the only people who have legitimate cause to find the hat offensive are people who are themselves illegal immigrants, and frankly, as far as I'm concerned, you waive any rights ro be offended when you cross the border illegally.

While I'm certainly not opposed to privatizing some of these functions, I suspect that it would not help the tendancy of local government towards self-importance, and I'm sure they would find ways to assert themselves even if Gray worked for them by proxy rather than directly.

Lastly, I think Noah confuses the question of whether government CAN undertake such works (and, indeed, _which_ governments) and whether they SHOULD. I don't think that anyone denies that, in general, state constitutions authorize state and local government to undertake such projects; the argument is that government should excercise that power through contracting rather than hiring its own workforce.
3.3.2006 9:10pm
DavidBernstein (mail):
Jenkins gets the point.
3.3.2006 9:12pm
finec:

I'll second Noah's off-topic points regarding the privatization issue, and add some related off-topic points of my own. While there are certainly some benefits to privatization, there are also substantial unintended costs.

- The bidding process for government contracts creates conflicts of interest and opportunities for graft. Government interactions with concentrated economic interests should be minimized. Corruption creates waste, but also, more importantly, destroys trust in the basic fairness of the economic system.

- Bidding is rarely competitive and contracts are often awarded on non-price factors (maybe this overlaps with my previous point).

- Privatization by contract bidding tends to give rise to monopolies / oligopolies which, in turn, exploit their market power to extract surplus from the taxpayer. Examples: Waste Managment, Halliburton, defense contractors, etc.

- The operational efficiency of the private sector relative to the public sector is a persistent myth -- there is waste in pretty much any bureaucracy, it's just that the government is much more visible and transparent than, say, IBM.

While I appreciate the impulse to reduce government's size, some goods are optimally provided by government. Do you really think outsourcing of a large part of military logistics has either a) improved efficiency from the taxpayers perspective or b) improved military efficacy?
3.3.2006 9:18pm
Kovarsky (mail):
i believe the fifth circuit is hearing this specific issue en banc. here is the panel opinion
3.3.2006 9:19pm
JB:
Contracting out road-building seems like a one-way route to corrupt bidding and really expensive roads.
3.3.2006 9:19pm
Jack (mail) (www):
I agree that the opportunity to privatize should be taken whenever possible, but I fail to see how this story illustrates that. For the same reason this isn't a 1st Amendment case, it isn't about public vs private provision of services.
3.3.2006 9:32pm
dunno:
Bernstein:

Jenkins gets the point.

Jenkins:

Privatize those functions because it gives the government fewer occasions to exercise said censorious powers. It wouldn't make First Amendment law any less complicated given that there must always be some core government employees.

Justin:

I mean, if you can replace PW with a private company, they were DEFINITELY going to fire this guy for advertising ANYTHING remotely political.


Admittedly, Professor Bernstein doesn't seem to share Justin's view, but he thinks we'd all be better off if Mike Gray worked for a privatized Public Works, where'd he'd likely be subject to the same restictions, at minimum. Unfortunately, there would be neither more lor less speech restriction in the world (or, as Jenkins admits, even in government), though Gray's case would be less justiceable. Absent any external arguments on the costs and benefits of private delivery of public goods, how does this, in and of itself constitute "another reason to support privatization of peripheral government functions"?
3.3.2006 9:43pm
dunno:
On a related, but normative note, Professor Bernstein, to what degree are (more often not justiceable) private sector speech restrictions inherently preferable, if at all, to (often justiceable) government speech restrictions? Is one set of proscriptions inherently better for individual liberty than the other?
3.3.2006 9:56pm
David Sucher (mail) (www):
I wonder if Professor Bernstein knows what a Public Works department does; it seems unlikely based on his throw-away remark that Mr. Gray's case provides "another reason to support privatization of peripheral government functions."

1. To call building of roads and sidewalks etc "peripheral" suggests ignorance of the critical economic value of transportation infrastructure.

2. To be unaware that in many jurisdictions the actual construction should be "privatized" demonstrates ignorance of how things are actually done as in most uyrban areas the work is bid. Usually the governmental staff does only maintenance and small projects.

3. To think that decison-making (about which roads, sidewalks etc etc are to be developed and in what order etc etc) could be done by a non-governmental organization is naive and even funny. Maybe we should privatize the courts as well.

But his remark sure does offer grist for comments!
3.3.2006 10:01pm
FXKLM:

Absent any external arguments on the costs and benefits of private delivery of public goods, how does this, in and of itself constitute "another reason to support privatization of peripheral government functions"?


Government control of speech is inherently evil. Government offering employment to bigots and insulating them from the market's disapproval of their bigotry is also inherently evil. Thus, to the extent that we have government employees, there will necessarily be some evil afoot. That evil can be minimized by minimizing government employment. That's true even if the result would be substantively the same with a private employer. Government control of speech raises unique moral issues.
3.3.2006 10:48pm
DavidBernstein (mail):
Dunno: I address this is Chapter 1 of You Can't Say That! There is no inherent problem with speech restrictions, the problem is when they come from the government. I'm pretty sure I also address the issue here.
3.3.2006 10:53pm
Kovarsky (mail):
David,

If the problem with these speech restrictions is that they are arguably content-based, why should we be any less suspicious of a government's decision to outsource speech regulation is itself driven by a desire to disable particular content.
3.3.2006 11:04pm
dunno:
Professor Bernstein:
Thank you. I'll refrain from further comment until I've read the selections.
3.3.2006 11:30pm
DWPittelli (mail) (www):
Noah Klein:
"States were involved in education in the 18th century. States were involved in public works in 18th century. ... Why is that not a basic function of government?... The reason the state took this up in the first place was because it needed to be done and it communal project. Policing is also such a communal project that needs to be done, but I doubt you'll say that the states shouldn't police their citizens."

Don't forget that states also ran the Post Office. But as with education and public works, these functions, while crucial, can be done by the state or under contract by private parties. Indeed, as has been pointed out, most major road projects are already contracted out. There are various costs and benefits to having these functions run by government, or instead run by (presumably regulated) private actors. One of the costs of having the government run most things is that we then have a single large employer essentially monopolizing all hiring and firing decisions. This power only becomes complete as the government approaches 100% of jobs, but someone trained in a field like road engineering (or teaching, etc.) can also be effectively at the mercy of even a moderate sized government.

The police function differs in that it is far more crucial that government maintain the monopoly of force and the criminal justice system. The current hierachy above the police on the street ends with an elected official. Accountability would be far harder to come by if it effectively ended with the CEO of, say, Halliburton. Although Halliburton would have incentive to keep its contract, the history of corporate / company-town police forces is not very reassuring.
3.3.2006 11:48pm
Lev:
It seems to me that Arapaho County is either being a little silly, or is caught between a rock and a hard place by some hypersensitive silly co-employees and is trying to work something sensible out:


Your business sign, if on work premises, must be completely covered at all times.


Seems a reasonable workout.

It seems the protagonist is being a bit of a silly person himself:


...and partly covers his business sign at work so that the American flag and the words "English speaking American" are the only things still visible. The County says that's not enough, but it's as far as Gray is willing to go.


Why do so many have to make a federal case out of everything.
3.4.2006 12:08am
Lev:
I wonder what the county would have said if "English speaking American" were a bumper sticker on his pickup.
3.4.2006 12:37am
stealthlawprof (mail) (www):
David -- Your First Amendment analysis of this scenario is far more deferential to the government's position than the case law supports. If the county is also prohibiting other workers from parking cars in the county lot with commercial advertising, then it can prevent Gray. Otherwise, the county is engaging in viewpoint discrimination and should lose. If the county prevents other employees from wearing hats representing outside entities, then it can prevent Gray from doing so. Otherwise, it is engaging on viewpoint discrimination and should lose. The notion that the government as employer can control an employee's speech without at least raising First Amendment concerns has been dead for about fifty years.
3.4.2006 12:47am
Kovarsky (mail):
i just reread this. let's get this straight: a white dude is riding around on his tractor likely creating the impression amongs his hispanic coworkers that he works for the border patrol and is proud to speak english?

my initial reaction was that this was a silly claim against the government as employer. without getting into the technicalities of the doctrine, one of the major focuses of the inquiry (i posted the relevant upcoming 5th circuit en banc case above) is whether the speech regulation is aimed at securing the government facility's neutral purpose. in the fifth circuit case it is a very live issue as to whether a hospital can keep an electrician from wearing a "union up" pin on the grounds it could create the impression of disorder at a hospital.

let's repeat how much more severe this is: the guy works at a public works department, likely with many hispanics who have family, and is garbed in paraphenelia that a reasonable person could quite honestly believe to be constitute a deportation threat.

if it's unclear whether the 1st amendment requires the hospital to allow the electrician to wear the "union up" pin, i don't see this case as even close.
3.4.2006 12:50am
logicnazi (mail) (www):
So I'm very worried about the government's power to suppress speech when it acts as an employer. There was the recent case about the prosecutor who the government tried to claim wasn't speaking on a matter of public concern because it was too closely related to his job function. Also there was the SF police deparment flap when officers created a comedic video off the job and were punished, or at least threatened with punishment as a result. At UC Berkeley recently a staff member got very close to being fired because in an off campus dispute about mundane things he responded to an insult from a girl he didn't know was a student with the use of the N-word.

All of these are troubling and I find the 'matter of public concern' doctrine extremely troubling. Not only is it a direct invitation for judges to insert personal judgements and biases but it is inherently discriminatory to minority viewpoints. A viewpoint is minority often because people think it is absurd or unimportant and this standard basically allows the government to clamp down on such speech by employees (I suspect in the south in a past century making fun of slaveholding would not have been deemed a matter of public concern and I imagine mocking religion would be treated similarly today). Given the large number of people now working for the government this is indeed troubling.

However, this case doesn't even rise to the level of serious concern. The individual in question appears to only being asked to change his speech on the job and job property. Unlike a union pin there is no good reason why the speech must be made on the job and whether or not you agree with the governments position there are clear reasons to restrict this speech over and above the particular views of management or the administration.
3.4.2006 1:15am
Kovarsky (mail):
Yes, people should read between the lines: the guy is being asked not to inadvertently threaten coworkers or coworkers' families with deportation. Intended threats are not protected speech. Inadvertent threats are, but we're not talking about viewpoint discrimination here.
3.4.2006 1:54am
Serenity Now (mail) (www):
Kovarsky: ... the guy is being asked not to inadvertently threaten coworkers or coworkers' families with deportation. Intended threats are not protected speech.

The "threat" amounts to, "I will snitch to the INS if I find out you're breaking the law." How is that speech less protected than any other kind? Leaving aside confidentiality issues, can state governments require employees not to report federal crimes to the federal government?
3.4.2006 8:04am
Stamboulieh (mail):
Kovarsky, I'm more threatened by the illegal aliens flouting our laws and I'm more offended when I call any automated services and have to WAIT for English.

What about what Enoch says "se hable espanol"?! Are "English Speaking Americans" being harrassed when we see a sign that says this?
3.4.2006 9:31am
Bruce Hayden (mail) (www):
I still see this as more the state as an employer instead of a 1st Amdt. case. In short, very little different from the other CO case this week of the out of control teacher at Overland HS - which also turns out to be in Arapahoe county.
3.4.2006 9:57am
Raw_Data (mail):
"...the guy works at a public works department, likely with many hispanics who have family, and is garbed in paraphenelia that a reasonable person could quite honestly believe to be constitute a deportation threat."

Implying that most Hispanics are here illegally? That's not accurate. What an odd prejudice indeed.

Btw, I have had crews on a job site who didn't speak English and it was a big mistake and I will never do it again. Even if they can do the work well, little things (like where to park their cars) become a big deal. That's why this post resonates with me as I will never ever hire labor again in which I am not sure that at least one perosn speaks very good English. (Btw, these crews came on the job as labor provided by a subcontractor who was a native English speaker so it didn't occur to me think of his workers.)
3.4.2006 10:24am
JohnEMack (mail):
The most interesting claim is that the government could not forbid Mr. Gray's speech if he was acting on his own time. This is not necessarily true. In the clearest case, military members (who are government employees) are significantly restricted in what they can do or say "off base." But fire department have successfully prohibited firemen from smoking at home, health care workers have been successfully prohibited for smoking, I have heard that some alcohol treatment professionals are prohibited from drinking. And I can see why Department of Human Rights employees might be prohibited from displaying politically correct signs or bumper stickers on their own property. The usual rule seems to be that the restriction must be rationally related to the employee's job. But just about every health or safety issue can be rationally related to a job -- we want healthy employees who show up at work and don't cost use workers' compensation payments. And virtually every employee who is known to harbor racist or sexist attitudes could be construed to create disharmony in the workplace. It is not altogether clear where this slippery slope ends.
3.4.2006 10:33am
Serenity Now (mail) (www):
JohnEMack, the rational basis test might apply to a home smoking ban and the like, but speech is protected by the first amendment. The bumper sticker ban would have to survive stirct scrutiny.
3.4.2006 11:22am
Serenity Now (mail) (www):
*strict even.
3.4.2006 11:23am
Raw_Data (mail):
"...some alcohol treatment professionals are prohibited from drinking."

Why on earth?
3.4.2006 11:31am
Tyrone Slothrop (mail) (www):
John Jenkins:
Privatize those functions because it gives the government fewer occasions to exercise said censorious powers. It wouldn't make First Amendment law any less complicated given that there must always be some core government employees.


Concomitantly, it gives private industry more occasions to exercise said censorious powers. I don't see any reason to think that public-works supervisers will become wiser by virtue of receiving their paychecks from a private-sector bank account.

This situation is a laughable illustration of how thin-skinned and pathetic we've become.

I agree that it's laughable, but I have a hard time generalizing from isolated horror stories in the press of this sort to conclude that we're all "thin-skinned and pathetic," when I don't encounter behavior of this sort. If this interwebs technology is good for anything, it is showing us all very quickly human behavior best not shown. That we see it more often doesn't necessarily mean it's happening more often.
3.4.2006 11:39am
Brett Bellmore (mail):
I'll agree that he shouldn't be "inadvertently" threatening illegal immigrant co-workers with deportation.

It should be done delibertately, with calculation. And threatening criminals with being reported to the law most assuredly SHOULD be protected speech.
3.4.2006 11:53am
Tony (mail):
What would make it truly delicious would be if Mike Gray was of Mexican ancestry.
3.4.2006 12:40pm
tioedong (mail) (www):
If he is a public employee, such a sign could imply he is racist, and it could cause problems with fellow workers who assume he is racist...so he could be reprimanded for it as a government employee...since most government regulations include all sorts of similar things to fire people they dislike...

I personally interpret this as racist...
Of course, an "english speaking American" would include blacks, American Indians, Indian immigrants who are US citizens, and other immigrants who speak English and have their citizenship...
It would exclude illegal immigrants, etc.
So it is not really "racist"...
3.4.2006 12:43pm
Visitor Again:
Even Latino immigrants who are here legally have reason to fear--and do fear--the Border Patrol. Lots of legals have been detained until they prove their right to be here. Sometimes that takes a long time.
3.4.2006 12:45pm
Dave Hardy (mail) (www):
Government control of speech is inherently evil. Government offering employment to bigots and insulating them from the market's disapproval of their bigotry is also inherently evil.

Even contracting out has its own problems. At least at the federal level, you have elaborate measures meant to ensure you take the lowest bid and don't play favorites. So the goods have to be precisely defined ... down to thickness of the sheet metal on a filing cabinet... so that everyone is bidding on the same thing.

In that setting, again, there is no role for market disapproval of bigotry. Unless maybe you figure out, in advance, every way in which bigotry might be displayed and forbid it in the proposal being bid on. Given that bigots can be rather imaginative, you're apt to wind up with first amendment violations that way (and at the least require a team of con lawyers to draw up the contract).

Speaking of imagination--the hat is quite an illustration! We know exactly what he was trying to do ... but it's sort of hard to pin down a good reason for forbidding a fellow to mention a government law enforcement agency! Is the county to forbid all law enforcement hats, all government hats, or to announce that Border Patrol is somehow uniquely intimidating or despicable?

(I suspect that the answer should be more along the lines of no LE hats for the reason that people should not give the false impression they are LE. There are statutes against impersonating an officer, after all. That hat doesn't say "I love the Border Patrol," but rather suggests that the wearer IS a member of the BP.)
3.4.2006 1:05pm
Noah Klein (mail):
FXKLM,

"That evil can be minimized by minimizing government employment. That's true even if the result would be substantively the same with a private employer."

If the evil lies in trying to censor a person, even a bigot, then what is the difference if a private firm or the government does the same thing. Both are censoring speech. The difference is that the government has the all legitimate use of force and a private company does not. Yet this is exactly why we separated executive, legislative and judicial funcitions. Therefore, the judiciary theoretically treats the private company and the executive branch the same. Actually, in practice, we all know that the judiciary is harder on the government than it is on the private company, because of the first amendment. This is why I brought up the off-topic remark. Where is the proof that the government censoring this speech is more harmful than private industry doing so? And if there is no proof why is it necessarily an example of why the government should privatize every "peripheral" government operation? In fact, more to the point, what does this case have to do with privatizing social services function of the state government?

Noah
3.4.2006 1:35pm
Kovarsky (mail):
OK well its nice to know that everybody used my previous post as a sounding board for their thoughts on illegal immigration. You guys must have been just dying to say that.

but it's nice to see that you aren't letting your political preferences get trumped by the fact that this guy does not work for law enforcement, much less the border patrol, and that you now all seem to concede that his employer seems to be resonded to what they perceive as a threat.

no, no - you're just smugly content that you think the threat is justified. well, i think illegal immigrants should be deported to. but i don't think that they should be subject to threats or extortion from private citizens presenting themselves as border patrol. nor do i think its appropriate to threaten legal immigrants with deportation of potentially illegal family members. none of that matters, because it's not actually the point. the point is that the public works department is responding to a perceived threat.
3.4.2006 3:24pm
e:

i don't think that they should be subject to threats or extortion from private citizens presenting themselves as border patrol.

Since when did wearing a baseball cap indicate that the wearer is representing himself as part of the organization. And how did I miss the "threat or extortion." Now I realize that I should have never given my father a US Navy cap. He's clearly threatening violence by association with the military. Great point about the "se habla espanol" hypo. Neither "side" should see this as a threat or validate it with any official reaction. If the sign advertized "not a 'spic'" or the hat read "Immigrants, shoot first..." then action would be warranted. I'm offended by the values of professional sports so that "Red Sox" cap pricks my thin skin.
3.4.2006 3:55pm
Kovarsky (mail):
e:

huh? the guy is works for the government, is wearing a border patrol hat, and wears a sign that says "english first."

i think your analogy to the red sox would work a little better if in addition to wearing your sox hat you were fat, couldn't play left field, demanded trades every two months, and still didn't know the directions to fenway even though you've played there for five years.

seriously, i'm not saying the cap makes anything a threat. i'm saying that wearing the cap in conjuction with other things you are wearing and in conjunction with your job and in conjunction with the general message your attire seems to be conveying could be interpreted by coworkers and customers as a threat, and that the potential threat (which is conduct, not speech) is the basis of the regulation/discipline, not the message.
3.4.2006 5:56pm
e:

let's repeat how much more severe this is: the guy works at a public works department, likely with many hispanics who have family, and is garbed in paraphenelia that a reasonable person could quite honestly believe to be constitute a deportation threat.

I guess I'm still lost on how a reasonable person would see this as serious or a threat. I didn't read anything about a badge or gun or spoken threats. Maybe I've just seen too many people wearing government agency hats and realize that in blue collar work people wear lots of hats unrelated to their current job.

Let's say he knows/suspects coworkers occasionally smoke pot on lunch breaks. No FBI hat? Ridiculous.
3.4.2006 9:41pm
Kovarsky (mail):
e:

yes you probably have a better perspective because you've done more work with blue collar types than i have.

ok dude, seriously, enough with the bad analogies. i don't think the guys boss is interceding on behalf of illegal immigrants. i think he's doing so on behalf legal ones.
3.4.2006 10:44pm
Kovarsky (mail):
by the way, my blue collar comment was facetious in the sense that i doubt that is why you have an enlightened perspective, not in the snotty sense.
3.4.2006 10:45pm
Sago Boulevard (mail) (www):
Kovarsky, let's say I grant you your argument. How does that justify making him cover the sign? He gave a very plausible reason why advertising his Enligh-speaking abilities helps his business.
3.5.2006 1:21am
Kovarsky (mail):
sago,

because he's at work, which happens to be as an employee for the government. he can where whatever the hell he wants on his own time.
3.5.2006 5:45am
Visitor Again:
I[m glad that some of you recognize what this nasty specimen is up to. The rest of you are making what are known as lawyer's arguments.
3.5.2006 5:56am
Sago Boulevard (mail) (www):
But what's the threat?
3.5.2006 9:15am
Bottomfish (mail):
Two things about the Denver Post story that do not appear to have been considered by Bernstein or any of the posters here:

(1) In response to the County, Gray offered to stop wearing the BP hat and to cover the sign on the truck so that it said only "English speaking American". The county did not consider that sufficient.

(2) Was any consideration given to who was complaining? Did other county workers complain? If so, how many? How do you evaluate the hostility of a message unless you make at least some effort to ask the presumably offended parties what they think?
3.5.2006 11:13am
SimonD (www):
i'm saying that wearing the cap in conjuction with other things you are wearing and in conjunction with your job and in conjunction with the general message your attire seems to be conveying could be interpreted by coworkers and customers as a threat, and that the potential threat (which is conduct, not speech) is the basis of the regulation/discipline, not the message.
But that is a threat to illegal immigrants, not to illegal immigrants. If this fellow was walking around in a hat that said "God kills homos", that is clearly an incitement of hatred towards homosexuals, but it is not a threat against me. I might feel bad for any of my colleagues who were homosexual, but I wouldn't personally feel threatened. Likewise, why would a person who was latino feel threatened by a threat against illegal immigrants? It doesn't make sense to me to assume that because someone is latino that a) they are an immigrant, b) they feel any sympathy or association with illegal immigrants just because of a common skin color. The only people who have legitimate cause to feel threatened by such a cap are illegals and those who harbor them.
3.5.2006 7:42pm
Yankee_Mark:
This has the aroma of the old 'if you've nothing to hide you shouldn't mind being stopped/searched' discussion.

Besides, the WASP businessman from Sheboygan and the African-American granny from Detroit are nowhere near as likely to be hassled by an INS/BP agent to demonstrate their legality as a perfectly legal Latino.

Surely you'll concede that being scrutinized and possibly having to verify one's legality IS a hassle? Not that I agree that the limitations should be placed on this guy because I don't ... just because I don't agree with the other side of the coin does not invalidate its arguments.
3.5.2006 8:03pm
Kovarsky (mail):
Simon D,

Actually, whether someone is subject to deportation is a confusing legal issue. Of course all legal immigrants may be deported. So may many legal immigrants. So your premise that this is only a threat agianst illegal immigrants is somewhat naive.
3.5.2006 10:22pm
Kovarsky (mail):
Sago,

I'm not answering that silly question. You know what the threat is. If you have a point to make about why the threat shouldn't be regulated, or why what I've argued is a threat is actually not one, say it. But don't cop out.
3.5.2006 10:25pm
Sago Boulevard (mail) (www):
Kovarsky,
I'm willing to concede the implicit threat in wearing the border-patrol hat. But a sign that reads "Lawn Services Done With Pride!! By An English Speaking American" conveys no such threat. The county could demand the he not wear the hat to work without making him cover up the sign. Without the hat, what threat does the sign pose?
3.6.2006 1:52am
Kovarsky (mail):
Sago,

Nothing. I have no objection to the sign without the hat. I just found it strange that everyone was stomping their feet about how this was just about "offending" people. I think that after the hat and the sign were noted, when the guy tried to retreat to a position that would have been defensible if it would have been the case BEFORE the initial problem, the response was sort of a reactionary "no dice."

As a constitutional matter, and I think as most people acknowledge, whatever our personal opinions about whether the government as employer SHOULD be able to regulate even the sign-only behavior, they can.
3.6.2006 3:19am
Mitchell Young (mail):
Why is nobody addressing the more salient issue, the prosecutor? Prof. Bernstein thinks that attending a meeting of people interested in promoting the rights of their own ethnic group is either prima facie evidence of discrimination or is so heinous that it 'damages the public trust' in law enforcement.

As I understand it, the attorney general is/was on the board of La Raza, an organization dedicated to promoting the interests of, well, the Race . Can I as an Anglo have confidence in Gonzales? Can I have confidence in any public employee that belongs to any ethnic pressure group?
3.7.2006 7:34pm