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The Ministry of Alcohol, Tobacco, Firearms, and Truth

Rita Cant,
ACLU Speech, Privacy & Technology Project
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October 7, 2013

The frenzy over “Operation Fast and Furious” has been hard to avoid. It’s been the subject of a massive DOJ report, Congressional hearings, contempt votes, subpoena fights in federal court, and relentless media scrutiny. But if there’s one telling the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) would love to rectify, it’s the “thoughtcrime” account of Agent John Dodson, one of the ATF insiders who helped bring the operation to public light.

The ACLU sent a letter today to the ATF, which has refused to allow Agent Dodson to publish a manuscript about Fast and Furious. Our letter explains why the denial violates his First Amendment rights, and undermines the importance that whistleblowers and public employee speech play in revealing wrongdoing and contributing to public debate.

If “Fast and Furious” makes you think of Vin Diesel, and “gunwalking” of vigorous calisthenics, let’s back up a bit. The Phoenix field division of the ATF launched a gun smuggling investigation in late 2009, in which they deliberately let straw buyers get their hands on assault rifles, which agents hoped to follow south to their ultimate consumers – drug traffickers in Mexico. But the ATF lost track of some 2,000 weapons, later implicated in hundreds of murders in Mexico.

Agent Dodson blew the whistle on the decision to “walk” the guns – alerting Congress after it appeared that two were used in a shootout that killed a U.S. border patrol agent. But when he recently asked to publish his own first-hand account of these events, ATF censorship was fast, and it was furious.

Foregoing redactions, they nixed his entire manuscript. Claiming a right to refuse publication requests “for any reason” (the ATF’s emphasis), the ATF explained to Agent Dodson that his book would have “a negative impact on morale in the Phoenix [Field Division] and would have a detremental [sic] effect on our relationships with DEA and FBI.” Agent Dodson doesn’t deny that his book could add to the ATF scrutiny, or even its three-year streak of bad press as a result of the affair. But these reasons just don’t cut it when it comes to a whistleblower’s right to speak – and the public’s right to hear what he has to say.

We decided to send the ATF a friendly reminder that we don’t lose our rights to speak, write, and teach when we accept government employment. Forty-five years ago, the ACLU stood up for Marvin Pickering, a high school teacher whose name marks the first Supreme Court case recognizing public employees’ speech rights. In 2009, we defended U.S. Air Force Col. Morris Davis, the former chief prosecutor for the Guantánamo military commissions, who was fired from his job at the Library of Congress’s Congressional Research Service because of opinion pieces he wrote about the military commissions system. Just last year, we sent a letter to the State Department on behalf of Peter Van Buren, a State Department employee who is being punished for publicly criticizing the U.S. reconstruction effort in Iraq. And rest assured we will continue to remind government employers of those rights as the need arises.

Marvin Pickering was fired after the local school board determined that his unauthorized letter to the editor criticizing school board policies was “detrimental to the efficient operation and administration of the schools of the district.” In the case that bears his name, the Supreme Court said that the”public interest in having free and unhindered debate” was “so great” that government could not shut down employee speech simply because it tarnishes agencies, embarrasses officials, or generates “controversy, conflict and dissension” among the ranks. The court decreed the “Pickering balancing test” to protect speech unless and until a government employer’s concerns outweigh all the First Amendment interests at stake.

While it’s undoubtedly an embarrassing time to be the ATF, speaking truth to power just isn’t an injury the Constitution recognizes, much less seeks to prevent. And it’s not just Agent Dodson’s Constitutional rights on the line. The American public has a stake in this fight too.

That’s because protecting employees’ speech is especially crucial when it informs deliberation on matters of public policy. Fast and Furious ignited national debates over gun policy, border security, whistleblower protections, and the “gunwalking” techniques deployed in the operation. These debates address matters of public concern at the heart of the First Amendment.

Public employee speech is even more valuable when it shares critical views of our government agencies we wouldn’t otherwise see. The Supreme Court has recognized that government employees are often in the best position to know “what ails the agencies for which they work.” We couldn’t agree more.

“Americans need and deserve truthful information about what the government is doing, particularly where the activity infringes on individual rights,” said ACLU Policy Counsel Mike German, who – like Dodson – endured years of internal retaliation after blowing the whistle on dangerous federal law enforcement policy.

That’s why protecting Agent Dodson’s right to speak should be a priority issue for civil libertarians, regardless of political stripe. “I don’t care if you’re on the left or the right. At the end of the day, we have a right to know and talk about what law enforcement agencies do in our name,” said Agent Dodson.

Given the national importance of both the Fast and Furious operation and ATF practices more broadly, the ATF should correct its mistake by approving Agent Dodson’s publication request, and by changing its policy to reflect the Constitutional principle that government needs a damn good reason to shut down employee speech.

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