A Phone-Sex Memoir Tests the Limits of Free Speech Rights

(Bloomberg Opinion) -- Can a public employee be fired for penning a memoir about her days as a phone sex operator? That's no law classroom hypothetical. It's a serious question, answered in Harnishfeger v. United States, a decision handed down by the U.S. Court of Appeals for the 7th Circuit earlier this week. The court supported the employee, but the panel's struggle to reach that outcome helps elucidate the difficulty of government workers' free speech rights.

The case involved one Amy Harnishfeger, author of a pseudonymous volume entitled “Conversations with Monsters: 5 Chilling, Depraved and Deviant Phone Sex Conversations,” self-published in 2016 as an e-book on Amazon. The monsters of the title, the court tells us, are the men (and one woman) who were her clients. The book is evidently a sharp critique of the phone-sex industry. Writes the court: “Harnishfeger was horrified to hear what some of the callers would fantasize to her about, including sexual abuse of children.”

A month after “Conversations with Monsters” debuted, the author reported for duty with the Indiana National Guard. Her supervisor, Lieutenant Colonel Lisa Kopczynski, soon became aware of the tome, and apparently was sufficiently disturbed to demand that Harnishfeger be removed from her National Guard posting by the Corporation for National and Community Service, the federal agency that had arranged the stint.  The agency complied, and shortly thereafter dropped her from its roster.

Harnishfeger sued, claiming among other things a violation of her First Amendment rights. The trial court threw out the lawsuit, but the 7th Circuit partially reinstated it.  The dispute between the courts wasn't over whether “Conversations with Monsters” was an exercise of free speech — plainly it was. The disagreement was over how to strike the balance between Harnishfeger's rights and the National Guard's interest in avoiding disruption and maintaining a positive public image. The path to victory might seem easy, but there are tricky barriers to circumvent. One of these is the U.S. Supreme Court's 2004 decision in City of San Diego v. Roe. That case involved ... well, let's be a little shy and let the 7th Circuit summarize Roe's facts for us:

The plaintiff in Roe was a San Diego police officer who sold videos of himself on an online marketplace, stripping and masturbating in a police uniform and pantomiming police work.

He was fired, and, like Harnishfeger, claimed that his First Amendment rights had been violated. The justices unanimously rejected his claim: “Far from confining his activities to speech unrelated to his employment, Roe took deliberate steps to link his videos and other wares to his police work, all in a way injurious to his employer.”

Sometimes, we free speech absolutists have to defend what might be called Addams Family behavior — expression that's creepy and kooky.  So it should come as no surprise that even in the case of Roe, I'm not entirely persuaded that the justices were right. Scholars who have called for strong First Amendment rights for public employees have tended to focus on such issues as exposing official corruption or disclosing that the government is lying. But sometimes the ground for defending the employee must surely be simply that her speech is none of the government's business.

Yes, a public employee must give up some rights in exchange for the job, and the Supreme Court is surely correct that as the distance between job and speech narrows, so must the protection. Thus the DMV should have no power to fire an employee because he turns out to be a white supremacist, but can surely discipline him if he shouts the n-word at black drivers waiting in line.

Where does “Conversations with Monsters” fall on the spectrum? The trial court concluded that the book does not address matters of public concern but instead “simply recites (in graphic, explicit and profane language) phone sex conversations in which Harnishfeger participated involving fantasies of sexual assault, incest, pedophilia, sexual abuse, and violence directed toward children.” According to the trial court, mere “descriptions of sexual exploits alone” are not “serious” or “portentous” enough to outweigh the National Guard's interest “in preventing potential disruption in the workplace.”

The court of appeals did not so much dispute this argument as circumvent it. The panel pointed out that the principal harm to which the defendants pointed was to the image or reputation of the National Guard.  Given the difficulty of even discovering the book's existence, however, the judges concluded that it was “highly unlikely” that it “could have reflected anything at all about the Guard, positive or negative.” Given this conclusion, the interest of the National Guard was easily outweighed by Harnishfeger's.  Thus the lawsuit the trial court had dismissed will proceed to trial (or, more likely, be settled in Harnishfeger's favor).

But let's not rush out to celebrate a First Amendment victory just yet. A plausible implication of the panel's reasoning — whether intended or not — is that had “Conversations with Monsters” become a big bestseller, the National Guard would have had a stronger case. Thus the decision is hardly a grand triumph for the robust view of public employee rights. As I have argued elsewhere, we should be wary of supporting free speech with arguments that turn on the smallness of the likely audience.

I am not suggesting that the National Guard doesn't have a point, or that there aren't cases in which the employee ought to lose because of the harm done to the Guard or its mission. But that's the point.  In our speak-your-mind era, controversial online speech by government employees is only going to increase.  By tiptoeing around the central First Amendment question, the 7th Circuit missed a chance to offer real guidance on where to draw the line.

The court of appeals upheld the dismissal of the suit against most of the federal defendants.

To contact the editor responsible for this story: Sarah Green Carmichael at sgreencarmic@bloomberg.net

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Stephen L. Carter is a Bloomberg Opinion columnist. He is a professor of law at Yale University and was a clerk to U.S. Supreme Court Justice Thurgood Marshall. His novels include “The Emperor of Ocean Park,” and his latest nonfiction book is “Invisible: The Forgotten Story of the Black Woman Lawyer Who Took Down America's Most Powerful Mobster.”

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