Separation of Advocacy and State
Tiverton’s public hearing on charter-related questions potentially to be placed on the next ballot didn’t let out until after 11:00, Monday night, although many in the audience (including the Providence Journal’s Gina Macris) left after the headline-grabbing debate over the future of the financial town meeting had ended. I stayed so late — despite dying stealth-blogger-gear batteries and a lack of worthwhile reading material — out of interest in the penultimate question, the passage of which would result in the insertion of the following language in the town charter (with the deleted text removed, per Monday night’s vote, I believe):
No officer or employee of the Town, including the School Department, shall use, or cause to be used, Town property, goods, money, grants, or labor to influence the outcome of
or encourage or discourage elector voting with respect to,an election, ballot question, Financial Town Meeting, or referendum; the foregoing shall not prohibit the distribution or publication of election, ballot question, Financial Town Meeting, or referendum information by the Town Clerk, the Board of Canvassers, or a Charter Review Commission.
During the discussion period, Town Council President Louise Durfee let it be known that she had consulted an ACLU attorney who believed the question to be sufficiently broad that a suit could be brought against the town on First Amendment grounds even before the rule had been invoked in response to an alleged violation. Inasmuch as she must file a W2 with the town, and is therefore an employee, she is concerned that she might be restricted from offering her opinion to a constituent while waiting in line at CVS on the grounds that she had expended town “labor” to promote her side.
Thus do lawyers leverage their own proclivity for distorting plain understanding to argue that reformist legislation might be subject to invidious interpretation beyond the scope of its language. By constitutional law, the argument goes, all town employees must be free to speak their minds, and some judge might interpret the above language in contravention of that right, so the law must be unconstitutional.
One needn’t be a lawyer (indeed, it might help not to be) to comprehend that no judge could produce such an interpretation because the First Amendment forbids it. The language clearly does not explicitly propose a restriction of free speech, and I believe that a fair reading cannot do otherwise than conclude that it doesn’t implicitly do so.
To illustrate this point, I asked Ms. Durfee whether she is currently permitted to respond if a constituent in line at CVS asks her whether she believes there to be a God. Her response, in concert with Councilor Brian Medeiros, was that, as a secular servant of the people, her opinion on theology is irrelevant. It is not. That only seems to be the case because church/state boundaries in the law have been so thoroughly traversed, thereby illustrating the legal delineation of public “labor,” specifically by precedent allowing public officials to express opinions on religion, whether in the course of their duties or in their private lives.
If Louise Durfee, as an always-on-duty public servant, can speak her mind about religion despite clear proscriptions against her implementing such views via the resources and privileges available by virtue of her office, then certainly she could offer her views on a budget despite a charter rule intended to “prohibit the use of Town resources to influence the outcome of a voting contest.”