About this judge who ruled that Facebook "likes" aren't "speech" -- is this guy really a judge?

"Merely 'liking' a Facebook page is insufficient speech to merit constitutional protection. In cases where courts have found that constitutional protections extended to Facebook posts, actual statements existed within the record."

-- Newport News (VA) U.S. District Judge Raymond A.
Jackson, in a preposterous January ruling

by Ken

Judge Jackson's brilliant ruling about Facebook "likes," I should explain, was the reason, or one of the reasons, why he summarily dismissed the complaint of Daniel Ray Carter Jr., a sheriff's deputy in Hampton, VA, who alleged that he was fired by Sheriff B. J. Roberts because he "liked" the Facebook page of an official in their office who was running against the sheriff for reelection. The case has come back to life because a bunch of briefs have just been filed in support of Carter's appeal by Facebook and the ACLU with the Fourth Circuit U.S. Court of Appeals, as reported by the Washington Post's Justin Jouneval ("A Facebook court battle: Is 'liking' something protected free speech?").

Daniel Ray Carter Jr. logged on to Facebook and did what millions do each day: He "liked" a page by clicking the site's thumbs up icon. The problem was that the page was for a candidate who was challenging his boss, the sheriff of Hampton, Va.

That simple mouse click, Carter says, caused the sheriff to fire him from his job as a deputy and put him at the center of an emerging First Amendment debate over the ubiquitous digital seal of approval: Is liking something on Facebook protected free speech? . . .

Carter's troubles began in the summer of 2009, when longtime Hampton Sheriff B.J. Roberts was running for reelection, according to the lawsuit, filed in federal court in Newport News in March 2011. Roberts learned that some of his employees, including Carter, were actively supporting another high-ranking Sheriff's Office official, Jim Adams, in the election.

Carter liked Adams's campaign page on Facebook, according to court records. When Roberts learned of the campaigning on the site, he became "incensed" and called a meeting of employees, according to the lawsuit. He allegedly told them that he would be sheriff for "as long as I want it."

After the meeting, the lawsuit says, Roberts approached Carter and told him: "You made your bed, now you're going to lie in it -- after the election you're gone."

About a month after Roberts was reelected, Carter and five other employees who supported Adams or did not actively campaign for Roberts were fired, according to the lawsuit. The other employees are also parties in the lawsuit.

Now are you getting this? Judge Ray is saying that Deputy Carter's Facebook "like" doesn't qualify as "protected speech" because it isn't even "speech." And yet whatever it was, it was, so the suit alleges, sufficient to get him fired. The judge isn't disputing that; he didn't get that far because, after all, Carter didn't make any speech and so he isn't entitled to protection on constitutional grounds.

Even a right-wing judicial ideologue like Eugene Volokh was offended by the genius judge's ruling.

Jackson's decision has also drawn criticism from some legal experts. Eugene Volokh, a law professor at the University of California at Los Angeles, said firing government employees for speaking out about matters of public concern is generally unconstitutional.

He said there are some exceptions, such as when a high-ranking employee's political affiliations are relevant to the job, or if the speech greatly disrupts the workplace or diminishes public confidence in the government agency.

In the Sheriff's Office case, Volokh said, Jackson upset a precedent with deep roots in U.S. law.

"The judge's rationale that a like on Facebook is insufficient speech is not right," Volokh said. "The First Amendment protects very brief statements as much as very long ones. It even protects symbolic speech, like burning a flag."

Volokh, like the ACLU, says liking is similar to putting a bumper sticker on a car, so it should be protected. He said he thinks the 4th Circuit will probably overturn the district judge's ruling -- but if it does not, it would be a significant moment.

"If the 4th Circuit agrees with the judge -- that liking is not protected speech -- that would suggest an overturning of precedents," Volokh said. "It would be interesting to see what the Supreme Court would do with that decision."

One would like to think that the Fourth Circuit will find this an easy case, open and shut, at least to advance beyond the idiotic roadblock thrown up by Judge Jackson to consider the merits of the case. As the Post report documents, this is but one of a host of cases now wending their way through the courts seeking to align new technologies with existing law and precedents. And as such, it's certainly an interesting story.

Which is what attracted me to the Post story to begin with. But I have to say, I found myself a lot more interested in the case itself. I'll say this on Sheriff Roberts's behalf: It's a tricky business, having an election going on between the incumbent and another, respected official of the Sheriff's Office. But is there anyone who doesn't suspect that the truth is the sheriff overstepped wildly, and used intimidation tactics that are blatantly unethical and, one would like to think, just as illegal?

Unfortunately for Deputy Carter this looks to me like the kind of thing that's going to be awfully hard to prove in court but that instinctively I think most of us would say is pretty clear: that Sheriff Roberts is a bully who runs his office by fiat, without regard to nancy nuances like laws and regulations.

For the record, the sheriff denies everything.

In filings in response to the suit, Roberts's attorney disputes Carter's version of events and says the firings were not politically motivated. The attorney did not return a call for comment, and Roberts could not be reached.

"All employment decisions involving plaintiffs were constitutional, lawful, not the result of any improper purpose or motive, and not in retaliation for political expression," the sheriff's attorney wrote in the filings.

Roberts said that some of the fired deputies had unsatisfactory work performance and that the campaigning had disrupted the workplace.

LET'S TRY AN UNSCIENTIFIC AND EXTRA-
LEGAL TEST OF THE PROBABILITIES HERE

What I'm about to propose obviously doesn't and shouldn't have any legal standing, but I'm still going to invite you to rate the following statements drawn from the Post story on a truth-probability scale of 0 (most improbable) to 5 (most probable):

(a) When Sheriff Roberts learned of the campaigning on the site, he became "incensed" and called a meeting of employees and told them that he would be sheriff for "as long as I want it."

(b) After the meeting, Sheriff Roberts approached Deputy Carter and said, "You made your bed, now you're going to lie in it -- after the election you're gone."

(c) All employment decisions involving plaintiffs were constitutional, lawful, not the result of any improper purpose or motive, and not in retaliation for political expression.

(d) Some of the fired deputies had unsatisfactory work performance.

(e) The campaigning had disrupted the workplace.

My truth-probability ratings:

(a) and (b): 5 (highest probability)
(c) and (d): 0 (lowest probability)
(e): 1 (a smattering of probability -- but then, is this the fault of the people running against the sheriff or of the sheriff himself?)

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The judge's plea for ideological restraint in filling 4th Circuit Court vacancies would ring truer if his court wasn't a hotbed of right-wing activism

In the Powell Courthouse in Richmond, home of the U.S. Fourth Circuit, it often seems as if Jefferson Davis is still president. (Though never tried, he was arraigned in this building, which served as the Confederate treasury.)

by Ken

There seems to be general agreement that J. Harvie Wilkinson III is a congenial, gracious judge, in the mold of his mentor, for whom he clerked in 1972-73, Supreme Court Justice Lewis Powell Jr., for whom the building in which he works is named: the Lewis F. Powell Jr. Courthouse, the Richmond seat of the Fourth Circuit U.S. Court of Appeals. (It is often pointed out in notes on Judge Wilkinson that Powell was a good friend of his father, Richmond businessman J. Harvie Wilkinson Jr.)

Judge Wilkinson was appointed to the Fourth Circuit in 1984 by Ronald Reagan. He served the allowed seven-year term as chief judge (1996-2003), and now is the senior-most active judge on the court.

Now, for all Judge Wilkinson's graciousness and congeniality, it is generally agreed that he played a leading role in establishing the Fourth Circuit -- long the proprietary enclave of the late Sen. Jesse Helms, who was said to at least sign off on, if not actually propose, every court appointment -- as the most conservative of the 13 circuit courts, a hotbed of right-wing judicial activism.

There was a time when the judge was thought to be a leading candidate for elevation to the Supreme Court. It's generally thought that the fact that he talked publicly about his interview with President George W. Bush ended his chance. In fact, not one but two Fourth Circuit judges were thought to be on the Bush short list: Wilkinson and his more stridently conservative colleague-rival, J. Michael Luttig. Apparently neither of them was judged to be a John Roberts, a Harriet Myers, or a Sammy Alito, and Judge Luttig didn't hang around waiting for another shot. In 2006, at the age of 51, he gave up his lifetime federal court appointment to take a job with Boeing.

Judge Luttig was replaced on the court, but the Bush regime has had a tough time getting appointments to the Fourth Circuit confirmed by the Senate. Maybe it's just a coincidence that Jesse Helms is no longer around to watch over "his" court. Probably it has more to do with Senate Democrats' growing unwillingness to rubber-stamp more of the judicial sludge Chimpy the Prez pumped into the federal judiciary. In any case, there are now a total of four vacancies on the Fourth Circuit awaiting appointments by President Obama.

Yesterday Judge Wilkinson weighed in with a Washington Post op-ed plea to the president not to "polarize" the Fourth Circuit. For anyone familiar with the court's recent history, it was a pretty astonishing exercise. Well, read for yourself:

Storming the 4th Circuit

By J. Harvie Wilkinson III
Friday, January 23, 2009; A15

So the U.S. Court of Appeals for the 4th Circuit is set for a takeover. Popular commentary has it that the court, on which I serve, is a fortress or bastion or citadel of conservatism. Discussion of coming changes suggests more the fruits of a successful military campaign than the result of an election giving our new president the right to nominate members to a judicial body.

This is all understandable -- to a point. Victory is exhilarating. There are no Supreme Court vacancies. With four vacancies on our 15-member court, the 4th Circuit may be the best game in town. With the new numbers in the Senate, the temptation is there to go for an ideological makeover.

Yet the tempting course would prove a misguided one. Of course there will be change, as there should be after every presidential election. While no two judges will ever agree on everything (regardless of who appointed them), the differences between appointees of Republican and Democratic administrations can be important. "I don't understand how someone so nice and so smart can be so wrong," I have told my wife. Her reply? "And did you stop to think, Jay, that they could be saying the same -- or worse -- about you?"

But these differences, however significant, are not the whole story. And ideology should not be the foremost criterion for selecting a judge. Many people may not believe it, but judges are not politicians in robes. Many of us found out long ago that we weren't all that good at politics. (I left law school to run for Congress, and the voters sent me back with a spanking.) So we became law nerds. We focused on standards of review, burdens of proof, and somnolent textual and structural discussions. And, when we were at our best, these arcana were not things unto themselves but became connected to the larger purposes of liberty and order that it is our duty to uphold and serve.

Law, then, is a medium through which judges of disparate beliefs often can find common ground. Ideological fervor is law's great antithesis. This is especially true on the courts of appeal, which, unlike the Supreme Court, do not have self-selected dockets and whose cases are often more technically challenging than ideologically flavored. Congress put federal circuit judges on panels of three for a reason -- namely, so that we could listen as well as talk, give as well as take and make the accommodations (more narrow rulings, less strident opinions) without which appellate courts cannot function. The 4th Circuit has never prided itself on ideology but on the collegiality that takes minds out of concrete and prevents personal animosities from clouding and distorting the essential act of judgment.

Courts of appeal, while inferior in constitutional rank to the Supreme Court, do matter. And it's not just because the Supreme Court cannot answer every question. Our two great oceans once marked a neat divide between domestic and foreign policy. It was easier for earlier courts to say which was which and to stay out of the latter. But the oceans are no longer the barriers they were, and the courts at all levels have become inescapably involved in matters pertaining to armed struggle and conflict. Today, the misadventures of the third branch can, like the miscalculations of elected bodies, place tens or hundreds of thousands at risk or, conversely, hasten the loss of our priceless heritage of personal liberty.

Wisdom in judging resides, now more than ever, in knowing all that we do not know, in resisting the urge to become ideologically self-assured. Perhaps, too, it resides in recognizing that persons throughout public and private life often, though by no means always, go about the tasks that society has assigned them with the same good faith that we go about our own. Perhaps it resides in understanding that judges, as quintessential generalists, occupy a vital role in this age of specialization, though it is one in which whole realms of knowledge will elude the powers of even the most incandescent judicial intellect. Wherever wisdom resides, it does not lie with the ideologues; activism of all persuasions is a trade best practiced away from the bench.

If all this marks me conservative, I wear that designation proudly. But far more than a conservative, I am an American. Our country faces deep and endemic difficulties, and the need for a successful presidency has seldom been so great. While the views I express here are solely my own, I feel certain that every judge on our small plot of public earth would bend every effort, within the limits of the laws and Constitution, to contribute to the larger good.

To be sure, there will be change and disagreement on the 4th Circuit, but I pray that coming appointments to our court will not cause the doors of communication and compromise to slam shut. A polarized 4th Circuit would bring no discernible public benefit. At the end of the day, it's not lines of battle; it's not us and them. Americans are in this together, and that includes the courts.

The writer is a judge on the U.S. Court of Appeals for the 4th Circuit.

It all sounds swell, of course. But then, there's the Fourth Circuit's record. One can understand the sensititivity of its judicial conservatives to President Obama's Lincolnesque associations; inside the Lewis F. Powell Jr. Courthouse, there seems to be a hazy illusion that Jefferson Davis is still the president. (The building now known as the Powell Courthouse served as the Confederate government's treasury, and C.S.A. President Davis -- although never tried -- was arraigned there.)

This is a court so commitedly conservative that one suspects the less conservative Clinton appointees have learned to shut up because they have so little chance of having any influence. As I understand it, the general procedure has been that, on rare occasions when a three-judge panel of the Fourth rules "wrong," the decision is bucked up to the full court to make it "right."

Of course, it could be that Judge Wilkinson is saying something different when he warns about polarization of the Fourth Circuit: that if the president appoints some really uppity judges to overturn the present conservative majority, he and his heretofore collegial colleagues are prepared to become the shrieking ideologues of our worst nightmares.

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"In the Loop" (on Thursday!): No plum ambassador gigs for fat-cat contributors? Plus, prospects for the ultra-right Fourth Circuit Court of Appeals

The Powell Courthouse in Richmond, home to the ultra-conservative Fourth Circuit Court of Appeals, which has four vacancies waiting for the new president to fill

"The big-money types and "bundlers," the fundraisers who helped put together Obama's stunning financial advantage, are expecting their reward -- say a nice, cushy ambassadorship in Rome or Paris or London. . . . But the chatter is that they'd better not count on it. The traditional sale of most ambassadorships, so aptly carried on during the Bush administration, may not continue."

-- Al Kamen, in his "In the Loop" column in today's Washington Post

by Ken

From the brain trust at the Washington Post came word yesterday that the old Federal Page, containing news of the inner workings of the intricate webs of government in the District of Columbia, has been replaced by something online called The Fed Page, which as best I can tell is going to contain news of the inner workings of the intricate webs of government in the District of Columbia.

Check. Maybe if I had the print edition as well as the online one I would understand better. But then, my understanding doesn't seem high on anyone's list of priorities.

However, one feature of The Fed Page caught my notice:

*In the Loop: Longtime Washington Post columnist Al Kamen reports throughout the week on the comings and goings and pratfalls of the federal government.

What's interesting here is, first, that apparently "In the Loop" will now refer only to our pal Al's inimitably wicked reports -- fed by what appears to be a veritable army of Inside the Beltway informants -- on the seedy underbelly of the permanent government. Although most of us think automatically of him when we hear "In the Loop," the Post has been using it as a standing head that also covered supposedly similar (bah!) columns by other writers.

Even more interesting is this business of Al reporting "throughout the week." Of late his publication schedule had shrunk to Wednesday and Friday. But sure enough, here we have a full helping of "In the Loop" on Thursday.

It leads off with the above-referenced item on early word regarding Obama administration ambassadorships:

Under Obama, the Envoy Convoy May Screech to a Halt

By Al Kamen
Thursday, November 6, 2008; A28

You'd think everyone on the Obama team would be celebrating today. But you'd be wrong.

There is major agita among some key elements of President-elect Barack Obama's juggernaut. For example, the big-money types and "bundlers," the fundraisers who helped put together Obama's stunning financial advantage, are expecting their reward -- say a nice, cushy ambassadorship in Rome or Paris or London. (By tradition, about one-third of the nation's 190 ambassadors are political appointees. They're the ones who get the fine European postings.)

But the chatter is that they'd better not count on it. The traditional sale of most ambassadorships, so aptly carried on during the Bush administration, may not continue.

Early speculation is that Obama may be more inclined to follow the Clinton model and select people, often political types, with some foreign policy credentials or knowledge of a country's language or culture. Clinton generally picked the high-rollers for smaller -- albeit quite lovely -- places such as Prague or Vienna. So you may have to forget about the Via Veneto.

Al also has reports on the early days of the Obama transition team, and an especially provocative item, "New Order in the Courts," which focuses not just on the obvious question of preparing for Supreme Court vacancies ("possibilities include Diane P. Wood, a federal appeals court judge in the 7th Circuit and on the faculty at University of Chicago, where Obama once taught; Elena Kagan, dean of Harvard Law School; appeals court judge Sonia Sotomayor; and Massachusetts Gov. Deval Patrick") but on the 15 appeals court and 36 district court openings the new president already has to fill -- with an eased path to confirmation thanks to the larger majority the Democrats will now have on the Senate Judiciary Committee.

The "most likely target right off the bat" is four openings (out of 15 seats) on the Court of Appeals for the Fourth Circuit (the Carolinas, Virginia, West Virginia, and Maryland). The Fourth Circuit, Al reminds us, is "long a bastion for conservative legal theories," but he doesn't remind us that it used to be more or less the personal preserve of the late Sen. Jesse Helms of North Carolina. Filling those four vacancies could bring about, wonder of wonders, a Democratic majority on the Fourth Circuit.

What's more,

Obama could expand his reach further if Congress passes a bill that adds new positions on the circuit court bench, which has not expanded since 1991, despite a 50 percent increase in the number of appellate filings in that time.

Already, liberal advocates, who have been in the political wilderness for eight years, are scurrying to prepare lists of potential nominees for appellate judgeships. "There's a pretty aggressive effort to try to identify candidates," said Nan Aron, president of the Alliance for Justice.

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