My Style - Reclaim My Identity

Tuesday, February 20, 2018

Lawsplainer: The NLRB Damore Memo

A lot of ink is being spilled about a memo from the National Labor Relations Board ("NLRB"), which found that Google did not violate the law by firing James Damore over his controversial memo. Some people are outraged and think that the memo means that science is illegal now; some people are triumphant and think its means that James Damore is wrong about everything as a matter of law.

I'm not going to move anyone off of any opinion about James Damore and am not interested in trying. However, here's a small amount of information to help you be outraged, or triumphant, more accurately and precisely.

Here we go.

In California, absent a contract that says otherwise, employment is "at will" — that means your employer can fire you for any reason that's not prohibited by law. For instance, you can't be fired because of your race or religion, for whistleblowing, and so forth. But you can be fired for a wide variety of reasons, some of them excellent and some of them stupid.

The National Labor Relations Act of 1935 ("the Act") provides one limitation on firing people. It's intended to protect employees' right to organize unions. Section 8(a) provides, in a great many words and ifs and buts, that employers can't fire or discipline employees for engaging in labor organization activity. However, courts and the NLRB also recognize that an employer can discipline or fire an employee for behavior that is sufficiently disruptive or in violation of an employer's legitimate rules, even if that behavior is also related to organizing employees. In other words, saying that you did something in order to organize your coworkers does not insulate that thing completely from employer discipline.

In August 2017 James Damore filed a complaint with the NLRB asserting that his memo constituted organizing activity protected by the Act and that Google therefore violated the Act by firing him over it. This initiated an administrative procedure within the NLRB that could have led to a trial before an Administrative Law Judge.

The NLRB has now released an Advice Memo from its General Counsel's office about the case. The memo is a recommendation that the Regional Director responsible for the complaint dismiss it rather than letting it proceed. It's moot, since apparently the memo and Damore's voluntary dismissal of his complaint crossed in the mail. The NLRB uses Advice Memos to guide its nationwide staff in resolving cases; though not always public, sometimes they are made public to reveal a change in NLRB policy about a particular issue or interpretation of a particular law. The NLRB's policies and interpretations of labor law can change as presidents appoint new commissioners to the five-member board. Advice Memos are not treated like court opinions; though they guide NLRB decision-makers, they do not bind Administrative Law Judges or courts.¹

The Advice Memo about the Damore case recommends dismissal of Damore's NLRB complaint based on a conclusion that Google did not violate the Act by firing him. The Advice Memo assumes, for the sake of argument, that Damore's memo was labor organizing activity protected by the Act. It finds that most of the memo, given that assumption, would be protected by the Act and that Google could not fire him for it. However, the Advice Memo agrees with Google that it could fire Damore because two parts of the memo violated Google's policy against discrimination. One part suggested that fewer women may seek high-stress jobs because women "on average" have more "neuroticism (higher anxiety, lower stress tolerance)." Another part suggested that men may have greater extremes, high and low, in IQ than women.² The Advice Memo reviewed prior Advice Memos discussing how employers could react to organizing activities that incorporated discriminatory content, and concluded that the memo's use of "stereotypes based on purported biological differences" was not protected under the Act, in part because of Google's evidence that Damore's memo caused dissent and disruption. In other words, it concludes that those statements represent the sort of discriminatory comment that an employer may lawfully punish. The Advice Memo concludes that Google therefore did not violate the Act by firing Damore.

One could attack the Advice Memo on several bases. Some prior NLRB Advice Memoranda suggest that the NLRB must consider proportion — that is, how much of a particular example of organizing activity was disruptive. Here the Advice Memo relied on two rather isolated parts of the Damore memo, while conceding the rest would be protected. One could also argue with the conclusion that the particular references were discriminatory and whether it was appropriate to dismiss them as an "effort to cloak the comments with 'scientific' references," as the Advice Memo says.³ However, past Advice Memoranda appear to give employers a significant amount of deference in making employment decisions about speech they deem discriminatory; it's not clear to me that this decision — even if wrong — is a departure.⁴ I'd also note that the deference to employer concerns about "disruption" is consistent with the path recently taken by courts in other contexts.

That's what the Advice Memo is. Here's what it's not: a court ruling that Damore's memo was discrimination or harassment, authority for the proposition that his memo would support a sexual harassment claim (among other things, actionable sexual harassment has to be severe or pervasive), a ruling that governs Damore's civil case or any other claim based on other laws, or precedent that binds anyone other than NLRB staff. It is merely an internal administrative rejection of Damore's assertion that Google violated the Act through his firing.

So: be outraged, be triumphant, but be so accurately.

Thursday, February 15, 2018

The Persistence of Tyranny

Seventy-five years ago this June, the United States Supreme Court corrected its own grave moral and legal error and ruled that the government could not compel Jehovah's Witnesses to salute the flag and take the Pledge of Allegiance at school. Justice Jackson's stirring words were a watershed moment in American recognition of individual liberty in the face of government demands for uniformity:

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.

A majority of the court thus retreated from its ignominious endorsement of thought control three years earlier:

A society which is dedicated to the preservation of these ultimate values of civilization may in self-protection utilize the educational process for inculcating those almost unconscious feelings which bind men together in a comprehending loyalty, whatever may be their lesser differences and difficulties.

These decisions came not in a vacuum, but in an era of brutal and largely forgotten persecution of Jehovah's Witnesses in America, which I discussed in the first episode of the "Make No Law" Podcast. You could call this tyranny, but the persecution was not committed by an abstraction. The people who abused those Americans were their neighbors, their fellow citizens, their equals before the law. The men on the Supreme Court who initially endorsed — and arguably encouraged — the abuse were just men, a collection of individuals rather than icons.

This week, very nearly seventy-five years after the Supreme Court got it right, Colorado teacher Karen Smith was charged with assault for forcibly lifting a schoolchild by his jacket when he did not stand for the Pledge of Allegiance. Smith disregarded not only three-quarters of a century of constitutional law but the school's own policy which correctly tells the students they may sit. This sort of thing — a student punished for exercising a right clearly established since FDR was President — happens remarkably often. For every American agreeing that it is wrong and that the school should be bound by the rule of law, you'll find an American applauding it and proclaiming it should happen more often: that the students are disrespectful, that they should be taught respect, that they ought to face official consequences for not joining in patriotic recitations, that failing to stand reflects values that those in authority ought to fight. I won't link to them. You know they're there. Read, if you must, the comments on any story about Karen Smith, or the fundraisers for her defense.

Tyranny is not an abstraction. Tyranny is not faceless government. Tyranny is not some anonymous end boss to be defeated once and then confidently forgotten. Tyranny is us. Tyranny is our inclination to punish and oppress the other. Tyranny is our willingness to abuse our neighbor for not being on "our team." Tyranny is mouthing platitudes about liberty while cheering its suppression. Tyranny is our capacity to rationalize exceptions to rights for our enemies. Tyranny is our willingness to dismiss violation of rights as unimportant or minimal. Tyranny sold you your morning coffee, greeted you warmly as you walked into the office, made lunch plans with you, and will wave goodbye to you at the end of the day. Tyranny can be you.

There is both hope and obligation. The Supreme Court reversed course and recognized fundamental liberty in just three years — a notably short time for that institution. But as Americans persist, so does tyranny. A right hard-won seventy-five years ago is still in peril today. The spirit that animated people who abused Jehovah's Witnesses in 1940 lives in people applauding abuse of a dissenting student in 2018. The duty remains to check the inclination towards tyranny in ourselves, and to stand between our friends and neighbors and their targets and say "no."

Wednesday, February 14, 2018

Make No Law Episode Three: On The Job

In episode three of the Make No Law podcast, I look at the complicated question of when the government can fire its own employees for their speech. Has the Supreme Court struck the right balance between the right to free speech and the need of government employers to maintain workplace discipline? I interview Richard Ceballos, a Deputy District Attorney in Los Angeles who experienced retaliation for questioning a search warrant, and whose case resulted in a very counter-intuitive rule.

Supreme Court opinion in Garcetti v. Ceballos

Oyez page on Garcetti v. Ceballos, including oral argument recordings

Supreme Court's 1968 opinion in Pickering v. Board of Education

Supreme Court's 1983 decision in Connick v. Myers

Demers v. Austin, in which the Ninth Circuit refused to extend the Garcetti rule to state college professors

My lawsplainer on Garcetti and Demers

Tuesday, February 13, 2018

Keith Latman Introduces CRM Suite Activity Log

Monday, February 12, 2018

Six Thoughts After Appearing On Fox News @ Night

1. I was asked, through Reason, to appear on Fox News @ Night with Shannon Bream to discuss my article about why nobody should voluntarily talk to the feds. It went — well, I'll let you decide for yourselves.

2. Lots of makeup really does make me look about 50% less Jabba-the-Lawyerish.

3. Chins. So many chins.

4. Shannon Bream was very gracious. I don't mean that in a "I'm dazzled by proximity to fame" way. She was kind and made me comfortable before and during the interview and let me say what I wanted. She didn't yell at me when I smirked.

5. Despite the text of my column, and the content of what I said on Fox, some people are concluding that I am a Trump supporter and devotee of Fox's most pro-Trump elements. One person asked how my wife could live under the same roof as me. That is always an excellent question, but not for this particular reason.

6. When the tech guy says "I could turn the monitor on so you can see the show as you're interviewed, but some people find it distracting," listen to him. Because there's some sort of weird sound delay so the sound in your ear isn't synched with what's happening on the screen and it's very discombobulating.

Lawsplainer: "Fruit of The Poisonous Tree" And The Special Counsel Investigation

I have a question.

I deserve this.

Don't be sour. This question is agricultural.

Of course it is.

It's about fruits and trees and some kind of poison or something?

Where did you pick that up?

Twitter and Reddit, mostly. People are saying that Special Counsel Robert Mueller's investigation is going to be derailed, and everyone's case is going to get thrown out, because it's all fruit of the poisonous tree.

Yes, that sounds like something that people on Twitter and Reddit would say.

So you're saying "fruit of the poisonous tree" isn't a thing?

It is a thing. But it is not anything like the thing being imagined here.

Look, I know you're a federal criminal defense lawyer and everything, but the fellow on Twitter seemed quite firm about this.

I'm sure.

Why not? I mean, if Mueller's team made mistakes or committed misconduct, couldn't that taint the entire investigation?

Not at all in the way people are arguing.

So what is "fruit of the poisonous tree," anyway?

"Fruit of the poisonous tree" is a metaphor used to describe part of the exclusionary rule.

The exclusionary rule, in brief, provides that when the government illegally seizes evidence in violation of your rights, it can't use that evidence against you in court. So, if the cops burst into your house and search it and seize evidence without a warrant, and no exception to the warrant requirement applies, the government can't use the illegally seized evidence against you when it prosecutes you for a crime.

The "fruit of the poisonous tree" doctrine is just an extension of that. It provides that if the government uses illegally seized evidence to obtain more evidence, that more evidence is also inadmissible in court. So, if the government raided and searched your house illegally, and seized evidence from your house illegally, then used that evidence to go get a search warrant for your office, the evidence seized from your office is inadmissible.

So why doesn't that apply to the Special Counsel investigation? People are saying Mueller's team broke the law and violated rights. Doesn't that make everything he does fruit of the poisonous tree?

No. The doctrine doesn't work that way.

It's true that people are arguing that Mueller's investigation is tainted because (among other reasons) a FISA warrant application to surveil Carter Page didn't adequately disclose the partisan nature of the information it relied upon, and that the entire investigation must therefore be shut down because of that and various other wrongdoing.

This argument is completely detached from the law for numerous reasons.

First, there's the concept of standing. "Standing" means that I cant' assert violations of your rights to get a court to exclude evidence. The "tree" has to be a violation of your rights for you to use the doctrine. So if the cops illegally search your house, and try to use the resulting evidence against me, I can't get it thrown out unless I had some sort of right to privacy in your house — as a tenant, for instance. But if the cops illegally search me, violating my rights, and then use the resulting evidence to get a search warrant for your house, and find more evidence there, then I might get that evidence suppressed because the "tree" is a violation of my rights.

In the Special Counsel's case, the only people who could conceivably claim "fruit of the poisonous tree" based on a bad FISA warrant application would be people whose rights were violated by that warrant — that is, Carter Page, and perhaps someone recorded talking to him.

Okay. What else?

Then there's the concept that the "fruit of the poisonous tree" doctrine allows exclusion of specific evidence resulting from violation of a particular defendant's rights. It doesn't require the shutting down of entire investigations.

Put another way, the question is whether the defendant can draw a direct line between a violation of his or her rights and a piece of evidence. The courts have rejected a "but for" theory of the doctrine. That is, the question isn't "would the police have done the things they did but for the violation of my rights." "The Court has never held that evidence is 'fruit of the poisonous tree' simply because “it would not have come to light but for the illegal actions of the police.'" So, for instance, even if the police become interested in searching my house because of evidence they seized illegally from me, so long as the warrant application to search my house does not include any of the illegally seized evidence, it's not fruit of the poisonous tree.

There's a related concept called attenuation. "Evidence is admissible when the connection between unconstitutional police conduct and the evidence is remote or has been interrupted by some intervening circumstance." The most common example of this is a voluntary statement. Generally, if the police illegally seize evidence, and then come and ask me about it, and I make a voluntary statement, courts consider the connection between the illegal seizure and the statement attenuated by my voluntary act, so that my statement is not suppressed. So, in the case of the Special Counsel, Papadopoulos and Flynn pleaded guilty to lying to the FBI during voluntary statements to them. Even if the Special Counsel got to that interview by violating rights, and even if those were Papadopoulos's and Flynn's rights, the voluntary statements would generally be treated as breaking the chain and would be admissible.

So the whole argument isn't plausible?

It's highly implausible on multiple levels. For instance, the theory seems to be that the FISA warrant for Carter Page did disclose that it was based on information from a partisan source, but didn't disclose how partisan the source was. We defense lawyers would love it if arguments like that worked — "yes, the government conceded their source was skeevy, but not how very skeevy" — but they just don't. The entire "fruit of the poisonous tree" argument about the Mueller investigation relies on courts acting in the way defense lawyers dream they would, but definitely haven't, at least since the Warren Court. Fourth Amendment rights, Fifth Amendment rights, the exclusionary rule — all of these things have been relentlessly marched back in the half-century since their high water mark.

So, basically, investigators can pull whatever misconduct they want, and if you can't draw a short line between the misconduct and a piece of evidence they want to admit against you, you're out of luck?

Not quite. There's a doctrine called "outrageous government misconduct." Basically, when the government's conduct in the case is so outrageous that it violates the due process rights of the defendants, the case can be thrown out. It's an extremely difficult doctrine to invoke and very rarely succeeds, and appellate courts usually reject it, so don't let me catch you citing it on Twitter.

To get a sense of how rare it is for this doctrine to be invoked, consider this case from the Ninth Circuit reversing a trial court's dismissal of a case under this doctrine. Bear in mind the Ninth Circuit is the most liberal and defendant-friendly circuit:

A prosecution results from outrageous government conduct when the actions of law enforcement officers or informants are "so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction." United States v. Russell, 411 U.S. 423, 431-32, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973). A federal court must dismiss a prosecution based on such actions. The standard for dismissal on this ground is "extremely high." United States v. Smith, 924 F.2d 889, 897 (9th Cir.1991). Dismissals are "limited to extreme cases in which the government's conduct violates fundamental fairness." United States v. Gurolla, 333 F.3d 944, 950 (9th Cir.2003). An indictment can be dismissed only where the government's conduct is "so grossly shocking and so outrageous as to violate the universal sense of 796*796 justice." United States v. Stinson, 647 F.3d 1196, 1209 (9th Cir.2011) (quoting United States v. Restrepo, 930 F.2d 705, 712 (9th Cir.1991)).

Underplaying how bad a source was, or losing texts, would definitely not cut it as outrageous government misconduct.

So are you pleased that these people are wrong?

Hell no. I'd like to see a robust exclusionary rule, a robust application of the fruit of the poisonous tree doctrine, and a resurgence in the vigor of the Fourth and Fifth Amendments, which have suffered since the 1970s.

I am, however, deeply annoyed that political factions that have lauded "law and order," deified law enforcement and insulated them from consequences, and generally denigrated the criminal defense function and the concept of defendants' rights are suddenly pretending to be devoted defense advocates.

Thursday, February 8, 2018

New Post At Reason About President Trump And Special Counsel Mueller

I write things elsewhere sometimes.