Algonquin Township Road Commissioner Andrew Gasser’s posting of a the message, “The Northworst Herald Is Fake News,” continues to be debated in the comment sections of various articles on McHenry County Blog.
You can find Illinois Leaks’ Kirk Allen’s original defense here.
Here is what Allen had to say to comments under that article:
Mr. Gasser, in his official capacity as a Highway Whatever, is speaking as a government employee, not as a private citizen (only in his official capacity may he change the sign).”
This is where the conversation needs to begin as there are great points here but also allegations and assumptions that are simply inaccurate.
It would be great if we could actually have a discussion without all the claims of partisan/political/right wing claims.
The question is simple, and so far, unanswered except by us.
Does Gasser have a right to use the sign as any other citizen?
We believe the answer is yes.
So how does his message get placed on the sign?
Considering he is the official in charge of the sign, he would have to be the one to do it.
So one could argue that yes, he changed the sign in his official capacity as the Highway Commissioner but considering he took steps to ensure it was done when he was off the clock to avoid the claims he got paid to do it, we find the official capacity argument weak at best.
Lets’ assume for discussion that he was paid to change the sign.
It brings us back to the question, how does he get his message installed on the sign?
Not allowing him to have his message posted because he is in charge would violate his right to post a message just like others.
In fact, to hang the hat on who has authority to change the sign becomes very problematic from a 14th amendment standpoint.
Why does a person authorized to change a sign lose his right to post a message of his personal making?
How is that equal protection under the law?
To argue that since he is the one with the power to change it means he has no constitutional protection to post a message of his making is silly.
There has to be a mechanism for him to post a message, just like anyone else.
I fully agree with this statement “government employees are only protected by the First Amendment when they are speaking as private citizens.”, which is why I said this in the article.
“And yes, he has free speech rights in this case as he was not on the clock.”
It is very clear an accurate argument is made for the changing of the sign is done in an official capacity, however, the changing of the sign message does not mean by default the message is that of a government employee.
We totally DISAGREE with the claim the message was to: “promote an overtly right-wing partisan message while acting as a government employee. First, he can most certainly be fired for doing so.”
The sign-up sheet for the sign is clear, The Township does not necessarily support or endorse the content of the messages on the sign.
I have heard from people on both sides of the political aisle and they saw no politics in the message.
Political speech is well defined and this was not political speech, let alone a “right-wing partisan message”.
The changing of the sign does not mean by default the message is that of a government employee.
Trying to take that position strips a person in that position from EVER posting ANY message and fails on the most basic legal analysis.
He cannot be fired for doing so unless you take the position losing the election is being fired by the voters.
Like I said in our article, I believe his actions will lead to others wanting to post their message and is going to lead to future problems.
Although I agree with the message, I think placing it on the public forum sign is going to be problematic for future messages as people will want to use it to voice their opinion about political figures, which is, in fact, political speech and not allowed on the sign.
So my question still stands for anyone to answer, how does an elected official that is in charge of a sign for public use as a public forum get his personal message posted?