Workplace speech, part deux

In my post about Overland High's commie geography teacher Jay Bennish, I mentioned that some students rallied in support of Bennish and that ACLU attorney David Lane was suing on behalf of his First Amendment rights, and I wondered whether the students and Lane would defend all kinds of workplace speech equally.

I didn't have to wonder long -- this morning, Slapstick Politics pointed out a CBS4 (KCNC-TV) story from last night that seems calculated to offer a counterpoint to the Bennish incident. Since the story dates back to November, I suppose the Bennish story is the reason why this one's suddenly getting some attention.

Mike Gray is a Public Works employee for Arapahoe County (where Overland High is located). He runs a lawn mowing business on the side, and often drives his truck and trailer to work. The trailer sports a sign promoting his business: "Lawn Services Done With Pride!! By An English Speaking American." Gray also wore, from time to time, a "U.S. Border Patrol" baseball cap from his son.  Arapahoe County has threatened to fire him:

Arapahoe County officials told Gray the sign and hat must go or else. In a Nov. 10, 2005, letter, his supervisor Monty Sedlak wrote the following:

"Some of your conduct ... is reprehensible and discriminatory to our non-English speaking and/or Hispanic workforce. You are in violation of ... guidelines which ensure a workplace free from harassment and sensitive to the diversity of employees."

"You are required to permanently remove your cap from the workplace. It is offensive and harassing. Your business sign, if on work premises, must be completely covered at all times. This behavior is inappropriate and any further incidents of this nature may result in further disciplinary action up to and including termination of employment."

Gray went looking for legal assistance and -- surprise, surprise! -- is getting it from the same David Lane who represents Jay Bennish:

Gray has hired attorney David Lane, who plans to file an injunction to allow the County worker to resume wearing his hat on the job and fully display his sign.

"What is of concern to me is whether the government of Arapahoe County is violating his Constitutional rights under the First Amendment," Lane said. "When the government tries to put a gag in people's mouths because they don't like the message that's being delivered, I'd do everything in my power to stop that from happening."

I guess Lane is one of the old-fashioned ACLU types -- a First Amendment absolutist -- instead of one of the newer types who support suppression of "hate speech."

My take? The Bennish and Gray cases aren't at all comparable. Threatening Gray over the lawn service sign is like telling Bennish he can't have an "Impeach Bush" bumper sticker on his car -- worse, really, since Gray's sign is, except to the hyper-sensitive, no different than a sign that says, "Se habla Espanol." As for the cap, they can forbid that when they also prohibit other logo caps -- Broncos, Rockies, Caterpillar, etc. Gray's sign and cap aren't related to the performance of his work.

Bennish's anti-American rants, on the other hand, are precisely the performance of his work -- or more properly, the failure to do so.