I Support Citizen Frank Calio’s Right of Free Speech

"In Delaware, if you are an incumbent your chance of being re-elected is 90 percent, even if you just keep your seat warm, and don't tick off anyone."

"The hearings and the combination of the two hurricanes, Katrina and Rita, captured the headlines with the news media, taking our minds off the killings in Iraq."

Recently our infamous Secretary of State Condoleezza Rice, a possible presidential candidate, (give me a break) appeared before the Senate Foreign Relations Committee…" (link)

For making these three statements and others like them, Delaware citizen Frank Calio might be fired from his job and pay a hefty fine. Citizen Calio’s job is to work as Delaware’s state Elections Commissioner. Delaware has a law that severely limits the first amendment rights of anyone who has Mr. Calio’s job. I’m not kidding:

§ 301. Appointment; term and compensation.

(e) The State Election Commissioner shall not directly or indirectly use or seek to use his or her authority or official influence to control or modify the political action of another person or at any time participate in any political activities or campaigns. (15 Del. C. 1953, § 302; 50 Del. Laws, c. 168, § 1; 57 Del. Laws, c. 181, § 15; 58 Del. Laws, c. 215, § 2; 70 Del. Laws, c. 186, § 1.)* (link)

At issue was citizen Calio’s part-time job and, more recently, avocation for 50 years. He served as a columnist for two Sussex County weekly newspapers, the Laurel Star and Seaford Star. When citizen Calio got his present job as Delaware’s Elections Commissioner, he stopped receiving payment for writing his columns. I don’t know anything about Mr. Calio’s personal finances, but giving up what little payment he received as a columnist for a couple of weekly newspapers might have hurt financially since Calio’s pay as Delaware’s Elections Commissioner is limited by statute to at most $16,000 per annum, a job in which he is to be employed “full time” (link). Being paid below the Federal poverty level for wages certainly belies the representation of his critics that his job is so high profile and sensitive that he shouldn’t be entitled to express political opinions on his days off:

"He's the election commissioner and that's probably one of the most trusted positions in state government. I don't think he can write the opinions he's written and stay without tainting the office."

Those are the words of Judson Bennett, “a former Lewes councilman and a Sussex County Republican activist.” Mr. Bennett isn’t satisfied with citizen Calio’s resignation as a columnist for two weekly newspapers. According to Mr. Bennett, citizen Calio deserves unemployment for expressing opinions unflattering to George Bush, Condi Rice, etc:

"If Frank says: 'I'm not going to do this anymore,' I don't think that's enough," Bennett said. (link)

When discerning observers of politics read such niggling and morally irresponsible views like Mr. Bennett’s, they can usually expect that more is motivating the “concern” than a high regard for avoiding “the appearance of impropriety” (to use Common Cause lobbyist John Flaherty’s description of citizen Calio’s exercise of his 1st amendment rights). Sure enough, Mr. Bennett proves no exception:

Bennett, who narrowly lost a 2004 bid to unseat County Councilman Lynn Rogers, said mistakes by the state election department may have contributed to his defeat. (link)

Ah, so what we might have here is a sore loser, perhaps one who instead of asking for an investigation of the vote count in his election instead argues that a citizen in the state of Delaware (Mr. Calio) should choose between enjoying free speech rights or earning an income. That makes a lot of sense. In my view, the only thing indicated by this entire non-issue is that the rights of citizens are not likely to find an exemplary champion in Mr. Bennett should he ever be elected to office again.

On second thought, more is indicated by this non-issue. Much more.

Democracy is Served Better by Silence than Speech

I challenge anyone in Delaware go to a “public meeting” held by DNREC or, better yet, attend one held by Rep. Bob Valihura. Watch what happens to pubic speech during the meeting. Usually the rules for public participation marginalize public speech and privilege elite speech (e.g., DuPont’s, DSWA’s). On other occasions, public comments at “public” meetings are forbidden entirely. One doesn’t need to be a literary critic to discern the subtext of these meetings: Delaware’s state government tolerates token public input to create the illusion of democratic participation. Democratic participation isn’t necessary for the government to do its work.

The result is the notion that silence is better than speech.

The conclusion isn’t confined to Delaware. It is pandemic in the USA body politic. The notion that silence is preferable to speech has become such an entrenched value that we now look suspiciously on those who speak often and loudly about political matters and trust those who are silent. In fact, we trust silence so much we expect individuals employed in the public sector to remain silent about views we know they must have only to provide ourselves with the illusion of their neutrality. Whether it’s someone nominated to become a Justice of the USA Supreme Court or the political appointment of someone to the office of Elections Commissioner, we pretend that the individual who doesn’t give us his views on matters of current import has none and, therefore, cannot exercise any kind of bias in his job. Not only is that logically absurd (just because Citizen Calio prefers Democratic candidates to win, it doesn’t follow that he has no value about the importance of honest elections), it is counterintuitive as well.

Those who are silent about their views can in fact hurt the public trust in ways no one can expect. But those who voice their views often actually provide us with an important public service: they tell us precisely where their political interests lie and, thereby, make any malfeasance they might commit more detectable. It is precisely for that reason that I trust those who exercise their 1st amendment rights more than those who don’t.

Human Rights are Negotiable

I found it flabbergasting to read in newspaper accounts, and during an interview on WDEL, people argue that Delaware’s state law trumps citizen Calio’s 1st amendment rights. How does that work precisely? How does a state law have greater authority than a constitutional right? Moreover, how can a job deny someone the exercise of a fundamental right?

It is not convincing to point out that citizen Calio knew (or should have known) that his job required him to surrender his speech rights because I believe no one should be required to surrender a right because of employment in any case. It’s no argument to point out that someone has surrendered something they should never have been asked to surrender in the first place. That’s only to beg the question about the necessity of surrendering a right.

Rights approximate to citizenship what sacredness is to religion. Rights savor of the inviolable, the non-negotiable, the natural. How does it even cross someone’s mind to believe something as fundamental as free speech can be vanquished simply because of a job?

Yet that is precisely what has happened. Citizen Calio has stopped writing his column and Attorney General Carl Danberg will investigate to see if Mr. Calio broke the law. Imagine. Citizen Calio might be punished for exercising a right. Where is the democracy in any of this?