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State attorney Libby Bakalar cites a statute governing the appeal process for election certifications and recounts during a press teleconference at the Division of Elections office in downtown Juneau on Nov. 26, 2018. A federal judge ruled that Gov. Mike Dunleavy violated her First Amendment rights when he fired her on the day he was sworn into office. (Jeremy Hsieh/KTOO)

Recently, a federal district court judge ruled that Gov. Mike Dunleavy violated the First Amendment rights of a Juneau attorney he fired on the day he was sworn into office in December of 2018.

Rashah McChesney sat down with former assistant attorney general Libby Bakalar to talk about what the ruling means.

The following transcript has been edited for length and clarity.

Rashah McChesney: This is kind of a complex timeline, so lets walk through it. You have this blog, One Hot Mess, for several years. At one point, you start writing about former President Trump, and another attorney and the state complains. The state investigates you and your blog and finds no wrongdoing.

Then Gov. Dunleavy gets elected, and he and his former chief of staff, Tuckerman Babcock, send out these demands for resignations to 800-something employees in the state including you. Something thats recently deemed unconstitutional. You resign. Gov. Dunleavy gets sworn in at noon on Dec. 3, and you find out 20 minutes later that youve been fired.

Thats more than three years fighting for this. What was that process like?

Libby Bakalar: You know, it was really slow and grueling, to be honest. I mean, it wasnt like every single day, something different was happening in the case or anything. Its just, its a long time to be in limbo with something like this. You know, I think I wrote about this in my blog it just a takes a very long time to prove this kind of point. When I filed this case, I was like, Ill be surprised if this is resolved within Dunleavys first term of office. So I fully expected it to take pretty much as long as it took. Its just part of being a litigant.

Rashah McChesney: One of the reasons that Tuckerman Babcock said that he did it was because he didnt like your resignation letter. Im wondering if you could tell me a little bit about that letter and sort of describe what you were thinking when you wrote it.

Libby Bakalar: Well, so the attorney general at the time, Jahna Lindemuth, gave everybody a template to write the resignation letters on. So every attorney who submitted the resignation letter used the same template. I may have added something like, Im doing this under duress, or Im doing it because, you know, Mr. Babcock said I was going to be terminated if I didnt do it. I kind of wanted to make it clear that my resignation wasnt voluntary. But that language about the resignation being involuntary was in the template. And as Judge [John] Sedwick said, another attorney who used the exact same language that resignation letter wasnt accepted. So that was just something that I think that we found completely not credible. And I think when you read the letter, you can see its completely professional and completely anodyne. So, you know, that was clearly pretextual and Sedwick saw right through that.

Rashah McChesney: When you submitted that resignation letter did you expect that they were going to accept it and that you were going to lose your job?

I think in the back of my mind, I was worried about losing my job, but I knew that what I was doing was legal. Thats the thing, right? I knew my work was good. I knew my relationships with my clients and colleagues were good. My work was beyond reproach, right? And I knew I had the constitutional right to speak on these matters. And so my mistake was assuming that these folks were going to comply with the law, right? And I think I must have thought that because, you know, when they called me and told me about this, that I was fired, I was like, I picked up the phone, and I said, Are you calling and telling me Youre firing me? And like, yeah, sorry, basically. So it kind of, you know, wasnt like this huge shock, I guess. But I think deep down, I was like, they couldnt really do this, because this is against the law, right? And they did it anyway. And were, you know, were a firm of lawyers. So I thought, Theres no way that these lawyers are going to carry out this illegal order, from Tuckerman Babcock, and I was wrong about that. I was wrong about that. So I think I was surprised on some level.

Rashah McChesney: This is a little bit of a rabbit hole, but there was another lawsuit against the governors administration, for demanding those resignations. These psychiatrists from Alaska Psychiatric Institute sued over the same thing, over being asked to resign.

Libby Bakalar: Right. The ACLU filed a case on their behalf of at the same time that they filed my case. And in that case, the psychiatrist plaintiffs did not submit resignation letters at all, and because of that, the judge had a different analysis. Theres these two lines of free speech cases like this. And one of them has to do with patronage schemes, and one of them has to do with policymaking and disruption at work. And the former line of cases is what the psychiatrist case was about, because they did not submit those resignation letters. And so the judge was able to find in that case, that the entire scheme itself, the resignation letter scheme itself, the very act of submitting of was essentially an unconstitutional patronage.

Rashah McChesney: So, they were just on some kind of parallel track this whole time?

Libby Bakalar: The judge declined to consolidate those two cases early on, the ACLU asked to have them consolidated and for a number of reasons, he denied that motion. And I think when you see the two orders, in those two cases, you can kind of see why. There are a lot of different issues. Obviously the psychiatrists, they didnt have this blog. There wasnt this whole question of whether they were policymakers there wasnt, there was just kind of some different issues going on, different fact patterns.

So yeah, they were similar in some ways. But in a way, it was the best possible outcome, in my opinion that these two cases were decided separately and on different grounds. Because what the judge did, essentially within one case, he invalidated the resignation demand scheme on its face. And in my case, he invalidated it as applied to me. Its sort of a double whammy. I think in the end, it was good because we got those two separate rulings that essentially validated the illegalality of this entire scheme, both as it was conceived and as it was applied.

Rashah McChesney: Now that its been ruled that they fired you unconstitutionally how do they pay for it?

Libby Bakalar: So thats yeah, thats the question. Its either gonna be through a settlement or a jury trial. And so this is kind of like the analogy would be the sentencing hearing, kind of. After someones convicted, right, theres a whole other sentencing phase. Its kind of like that. So the judge basically, you know, quote, unquote, convicted them on this wrongdoing. And now theres the quote, unquote, penalty phase, thats more or less the analogy in the civil setting. So its over in the sense that the merits of the case have been decided, I mean, they could always appeal for all I know, they might appeal. And that could change the picture somewhat. But we have this ruling that says they broke the law, right? So now its like, well, how do you remedy that? And thats an open question.

Rashah McChesney: There could still be a fair amount of wrangling.

Libby Bakalar: Theres a fair amount of loose ends. Its not just, like, completely over. Its a win there. Its a pretty much an unqualified win, in my opinion, just because for me, just psychologically, I just, this whole time, all I ever wanted was for a judge to say, Yes, this was unconstitutional. Yes, this was illegal. And that finally happened. And so for me, its over in my mind on that front. In terms of my feelings of vindication on the merits of what they did, how theyre going to pay for it, whats going to happen in the future, how this will affect state employees. What I really care about is that this never happened to another state employee ever again. I never want to see a mass resignation scheme. I never want to see a partially exempt, non-unionized state employee some geologist, biologist, architect, you know be forced to resign their job every four years. Thats just insane.

Rashah McChesney: Is this case as simple as a free speech test? And should every state employee go out now and write whatever they want about the president on a personal blog and feel reasonably certain that they wont be fired?

Libby Bakalar: I dont know. I definitely would hesitate to answer that question in the affirmative. I dont think thats true. I think there is a fact-based analysis of like, what positions are really policymaking positions for which political affiliation is actually a job requirement? I dont think the court order really answers that question in any kind of uniform way. It certainly doesnt say every non-unionized state employee can say whatever they want, whenever they want. Like, thats not what it says. But I think what it does do is it sends a message that, you know, at least in some cases, you know, non unionized state employees do have free speech rights. Its not a good faith constitutional use of personnel resources, to demand resignations, and to make personnel decisions, based strictly on peoples off-duty speech, right?

But there again, theres complicated case law, and these complicated tests and balancing tests and applying all these factors and things. So its not as cut and dried as now, you know, every non-unionized state employee, every partially exempt state employee can say and do whatever they want. No, thats not what this order says. But I think it does send a message that there are still, there are limits, you know, to what the government can do to you. And we do have, we still have democracy, at least nominally. And we still have free speech rights in this country. And even if you work for the state, and thats, thats been established now. And I think it was established before it should have been known before. But now its been reiterated in no uncertain terms.

So I think future administrations are going to think twice before they try anything like this ever again. So functionally, I think its going to be there will be much more deliberation about that transition. About who is told to leave their job, and who was forced to resign their job. And under what conditions, right? I think I will have set some precedent, these two cases will have set some precedent in that respect.

Rashah McChesney: Right, because this is something that happens during every governors administration, generally, is that they asked for the resignation, but usually of political appointees, right?

Libby Bakalar: Usually commissioner-level and director-level people, deputy director levels people who are quite comfortably within that policymaking framework, right. Not typically ever, you know, a Fish and Game biologist, or, you know, city water, a state water inspector or something. I mean, jobs that have absolutely no policymaking, you cant even make a good faith argument that these are policymaking jobs. But, you know, that was all based on norms before, and this administration shattered those norms.

Just because it had never been done before. And the reason it had never been done before was because you would never even consider asking non policymaking employees to resign. And yet, they did do that as some sort of, quote, bold new thing or something to quote Tuckerman Babcock. But what it was, it was a flex, you know. It was a flex. It was an intimidation tactic. It worked. You know, for the past four years, three-and-a-half years people have been absolutely terrified in this administration.

I hear from state employees every day, how scared they are working for these people. And with good reason. They have shown absolutely no compunction about violating the law and penalizing people for quote-unquote disloyalty.

So there was like, a few different kind of iterations of this, right? And all of it just sent this general message of intimidation. And the idea that youre, you know, the administration is lurking on your social media, and theyre just waiting to pounce on you for disloyalty. I mean, thats a terrible and completely undemocratic way to exist as a government employee. And it just made me so angry. And I think thats what fueled this entire thing for me, is that I just wanted to do something impactful for the entire state employee workforce.

Rashah McChesney: In that other case that we were talking about earlier were a couple of doctors sued over this resignation letter requirement. The judge ruled that Tuckerman Babcock and and Governor Dunleavy dont have qualified immunity in that situation. Does that apply to your case as well?

Libby Bakalar: No, it doesnt, and I didnt expect it to either. Qualified immunity is a very hard thing to lose. You have to really do something bonkers to lose it. And I was actually surprised in the psychiatrists case to see Dunleavy and Babcock stripped of qualified immunity, because its functions, in practice, like absolute immunity, it really does.

Ive never seen it happen where a government defendant in a civil case like this loses qualified immunity. Its just unusual, its very unusual. Because if government workers were able to be held personally liable in their jobs, no one would ever work for the government, right? So there has to be some form of protection there.

But I think what the judge was saying is that they went so far with this, this was so out of the realm of reason to do this, that they were personally liable for it. I think, in a way, I think qualified immunity is good for government workers. In another sense, it also disincentivizes good faith conduct on the part of people in power in government, because unless its their personal assets on the line in these types of situations somebody is acting in bad faith theres no incentive to obey the law.

Take my case, for example. Ive been gone from the Department of Law for three-and-a-half years. They got what they wanted, they got me gone, Im gone. Im not there, right? Theyve gone on. And now like the damages phase is, you know, the damages go to the state of Alaska, not to them. So they lost nothing. So when you lose qualified immunity, at least that sends the message of you cant just do whatever you want. At some point, theres going to be a point at which you are going to have to worry about your personal assets in these things. And you cant just disobey the law, and expect to completely get away with it every time and have the State of Alaska foot the bill in the end.

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After winning, Juneau attorney reflects on her years-long First Amendment case - Alaska Public Media News

Ohio Attorney General Dave Yost had a challenge on his hands in trying to explain First Amendment rights to a school superintendent last week. It is difficult to explain a right so many people believe they understand and yet grossly misinterpret in an era of trolling, triggering and too much time on our hands.

Lebanon City Schools Superintendent Isaac Seever made a mistake when he asked parents and religious leaders not to protest on campus, after he had already supported the First Amendment rights of a group calling itself the After School Satan Club to meet regularly at a Lebanon elementary school.

Yost had to explain to Seever that BOTH groups rights should be supported, after Seever wrote a letter in which he pleaded with parents and the community not to protest on school property because we serve a young student population and some of them may have no idea why adults are gathering in support or opposition on Thursday afternoon.

Yost rightly described the Satan Club as an attention-seeking group, but nonetheless correctly assessed they have a right to meet in the public building. Seever seemed to understand that part. What he missed was others right to protest the move.

The area around the school is a public forum. Public streets, sidewalks, and parks have time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions,' Yost wrote. Content-based restrictions on political speech in a public forum just dont fly.

Such a strong statement from the highest-ranking school official, intended to protect the schools controversial decision, sent to all Lebanon families, in coordination with the Lebanon Police, is just the sort of government policy that chills the exercise of First Amendment rights, even if it fall[s] short of a direct prohibition,' Yost wrote.

Too many people today understand First Amendment rights only when they believe those rights protect THEM. When it comes to the rights of those with whom they disagree, that understanding disappears.

Yost was right to step in, reminding Seever First Amendment rights cannot be invoked only when convenient. Heres hoping Seever and a great many other people learn the lesson.

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Explaining the First Amendment | News, Sports, Jobs - Marietta Times

A councilwoman in OFallon, Missouri, has been impeached and removed after raising questions about the municipalitys now former police chief.

Katie Gatewood, a former law enforcement officer, had learned that the man hired as chief in 2020 had been the subject of controversy at his previous post in Conroe, Texas. According to a report by officers in the Texas Rangers, in 2017, Philip Dupuis responded to a domestic violence call that involved a fellow officer who was one of his friends. According to another officer who responded to the scene, Dupuis seemed more concerned with what would happen to his friend than about the victim.

Gatewoods interest in determining what really happened in Conroe has now led to her ouster. Her attorney, Dave Roland of the Freedom Center of Missouri, said Gatewood made several public records requests and phone calls to learn more information about Dupuis actions. Her colleagues accused her of violating city ordinances by making those inquiries and, last week, voted to impeach and remove her from office.

Those actions have Roland concerned. Gatewood, he said, merely exercised her right to free speech.

It raises incredibly severe First Amendment consequences for the voters, as well as for the elected officials who are being threatened with removal from office, he told St. Louis on the Air.

Roland filed a lawsuit against the city on Gatewoods behalf three days before she was ousted by the council. In it, he argues that the councils actions were retaliatory and that the disciplinary panel against her was biased and that these actions violated her constitutional rights.

Listen: OFallon councilwomans removal raises First Amendment concerns

They said, essentially, that it was illegal for her to ask those questions under city law, Roland said.

U.S. District Judge Audrey Fleissig declined to intervene before the impeachment vote. But Roland is hopeful that she will now consider the matter ripe for judicial review. On Wednesdays show, Roland said he plans to approach the federal judge with an updated complaint within a month.

As for Gatewood, her term on the council ends in a little over a year.

We would love to see Katie restored to the council, said Roland, but even if she ultimately is not, we intend to get a ruling as to whether the removal was unconstitutional.

Dupuis resigned from the chiefs job in OFallon last June.

St. Louis on the Air brings you the stories of St. Louis and the people who live, work and create in our region. The show is hosted by Sarah Fenske and produced by Alex Heuer, Emily Woodbury, Evie Hemphill and Kayla Drake. Jane Mather-Glass is our production assistant. The audio engineer is Aaron Doerr.

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Ousted O'Fallon councilwoman will continue to fight - St. Louis Public Radio

On Wednesday, the ACLU of Alaska settled case against Governor Michael Dunleavy and former Chief of Staff Tuckerman Babcock

ANCHORAGE The ACLU of Alaska and State of Alaska finalized a settlement in Blanford and Bellville v. Dunleavy on Wednesday. The settlement resolves a lawsuit after a federal district court ruled in October that the Dunleavy Administration violated the First Amendment rights of two former Alaska Psychiatric Institute (API) doctors who refused to write pledges of loyalty to the administration.

Dr. Anthony Blanford will receive a lump sum of $220,000 and Dr. John Bellville will receive $275,000 for damages, lost wages, and attorneys fees.

Wednesdays settlement marks the end of a years-long battle to defend the First Amendment rights of non-unionized state employees, who were subject to unprecedented demands by the Dunleavy Administration immediately after it took over state leadership in 2018. Exempt and partially exempt employees, including the doctors represented in this case, were told to provide a written pledge of loyalty to Governor Dunleavys political agenda and were told if they didnt, theyd be terminated.

In this country were not supposed to have to sacrifice our freedom of thought in order to keep our jobs. I hope the Governor of Alaska stops doing this to the people he is supposed to be governing, said Dr. Bellville. We elected him with the expectation that he would protect our freedom of speech rights, not force us to give them up under the threat of losing our livelihood.

Neither doctor provided a pledge, as it would have been an ethical violation to put politics before the health of their patients. As such, they were wrongfully terminated.

I hope this clarifies and strengthens the rights of those who work in government and who are not political appointees. No incursion on our basic constitutional rights should go unchallenged, said Dr. Anthony Bellville

The settlement includes a pledge from the Governor and the State of Alaska to refrain from using peoples political affiliation as a litmus test for employment decisions.

We hope that this settlement allows state employees to breathe a little easier knowing the behaviors the governor and his chief of staff engaged in are off-limits for all non-policymaking employees, said Legal Director Stephen Koteff. The court clearly concluded that they violated our clients rights, and this settlement extends the same legal protections to the rest of the State workforce as well.

The State of Alaska must promptly seek legislative appropriation to satisfy the settlement.

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aclu, api, bellville, blanford, dunleavy.settlement.first amendment, loyalty pledge

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State of Alaska pays out for Dunleavy Administration violating First Amendment rights of API doctors - Alaska Native News

A Georgia sheriff violated the First Amendment when he posted signs on the lawns of registered sex offenders to warn away trick-or-treaters, a federal appeals court said in a recent ruling. A three-judge panel of the U.S. Court of Appeals for the 11th Circuit unanimously concluded that the signs amounted to unconstitutional government-compelled speech. The decision strikes a blow against irrational policies that stigmatize sex offenders without any plausible public safety payoffin particular, panicky precautions against the special danger they allegedly pose on Halloween.

Several days before Halloween in 2018, two sheriff's deputies put up cautionary signs in the front yards of all 57 registered sex offenders in Butts County. "WARNING!" the signs said. "NO TRICK-OR-TREATING AT THIS ADDRESS!!" This "community safety message," the signs explained, was "from Butts County Sheriff Gary Long." After trespassing on private property to publicly shame the people living there, the deputies told the affected residents they were not allowed to remove the signs.

In a message on his official Facebook page, Long explained that "my office has placed signs in front of every registered sex offender's house to notify the public that it's a house to avoid." He claimed "Georgia law forbids registered sex offenders from participating in Halloween, to include decorations on their property." As Long later conceded, that was not true.

Long also claimed his signs would protect "the safety of your children." Yet he made no effort to distinguish among registrants based on the crimes they had committed or their state-assessed risk of recidivism. And he admitted that during his six years as sheriff, none of the residents he targeted had been accused of inappropriate contact with children, whether on Halloween or the 364 other days of the year.

Long was making a big show of responding to a mythical menace. Despite widespread warnings about sex offenders luring children with candy on Halloween, a 2009 study of 67,000 sexual crimes against minors found "no increased rate on or just before" the holiday. The authors of that study, which was reported in the journalSexual Abuse, noted that "states, municipalities, and parole departments " nevertheless "have adopted policies banning known sex offenders from Halloween activities, based on the worry that there is unusual risk on these days."

Long's stunt was not just irrational, three of the men he targeted argued in a federal lawsuit; it was unconstitutional. The Supreme Court has long recognized that the First Amendment generally prohibits the government from forcing people to promote messages with which they disagree.

In the 1977 case Wooley v. Maynard, for example, the Court held that New Hampshire could not punish two Jehovah's Witnesses for covering up the state motto, "Live Free or Die," on their license plate. New Hampshire, the justices observed, "in effect requires that appellees use their private property as a 'mobile billboard' for the State's ideological message or suffer a penalty." The Court concluded that the state could not "constitutionally require an individual to participate in the dissemination of an ideological message by displaying it on his private property in a manner and for the express purpose that it be observed and read by the public."

In their lawsuit against Long, Butts County residents Corey McClendon, Reginald Holden, and Christopher Reed argued that his warning signs likewise qualified as unconstitutionally compelled speech. U.S. District Judge Marc Treadwell, who issued a preliminary injunction against Long in October 2019, initially seemed inclined to agree. But he subsequently dismissed the lawsuit after concluding that Long's signs did not implicate the First Amendment after all.

As Treadwell saw it, the signs did not qualify as compelled speech because passers-by would ascribe the message to Long rather than the residents. Hence McClendon, Holden, and Reed were not forced to "endorse" that message. Treadwell also noted that the plaintiffs were free to contradict Long's warning by posting additional, corrective signs.

In a January 19 ruling, the 11th Circuit concluded that Treadwell's analysis was mistaken. Although he "determined that a compelled government speechclaim requires a finding that a reasonable third party would view the speech as 'endorsed' by the plaintiff," the appeals court said, "Wooley contains no suchrequirement." The "primary harm" in that case, it noted, was "the required use of the plaintiff's property as a 'billboard' for government speech."

The 11th Circuit said Treadwell "also erred by determining that the plaintiffs' ability to place their own yard signs disagreeing with the warning signs could cure the original violation." If that were true, it said, "the Sheriff could place any sign identifying himself as the speaker in any county resident's yard," as long as the resident was allowed to provide a counterpoint with his own sign. Such commandeering of private property for official propaganda would be plainly inconsistent with Wooley.

Since Long's signs qualify as compelled speech, the 11th Circuit said, they have to satisfy "strict scrutiny," meaning they are "narrowly tailored" to serve a "compelling" government interest. And while Long's avowed purpose of protecting children from sexual predators counts as "compelling," the court said, his yard signs are "not narrowly tailored to achieve that goal."

Treadwell noted that McClendon, Holden, and Reed "have, by all accounts, been rehabilitated and are leading productive lives." Nor was there any evidence that the other registrants posed a threat to children.

Long "did not consider whether any of the registrants were classified by Georgia as likely to recidivate," the 11th Circuit noted, and he "even admitted that, since he took office in 2013, he had never had an issue with a registrant having unauthorized contact or reoffending with a minor on Halloween or at any other time." Long, in short, "has not provided any record evidence that the registrants in Butts County actually pose a danger to trick-or-treating children or that these signs would serve to prevent such danger."

Unfortunately, legislators typically show about as much judgment as Long when they target people convicted of sex offenses, who are hounded by myriad requirements and restrictions long after they have completed their sentences. Those policies, which include the registries themselves as well as residence restrictions and a panoply of occupational disqualifications, are likewise supposed to protect public safety. But as with Long's yard signs, there is little evidence that they work as advertised. Instead they impose punishment in the guise of regulation, undermining rehabilitation by demanding perpetual ostracism.

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11th Circuit Says a Sheriff Violated the First Amendment by Posting Warning Signs on the Lawns of Registered Sex Offenders - Reason