First, in the first three (3) full and complete pages, write about who you are. Include what you feel comfortable sharing regarding your personal history and what your aspirations for the future are.

Second, in your own words (but using proper grammar), in the nextfour full and complete pages, analyze and address the following:

Free Speech under the First Amendment, the Whistleblower, Espionage, President Trump, and Impeachment

A federal government whistleblower filed a complaint in August 2019 about one of Trump’s telephone conversations with Ukraine’s President Volodymyr Zelenskiy and other dealings with the Eastern European nation. The complaint prompted House Democrats to launch a probe that ended with Trump’s impeachment in early December 2019. The matter now will presumably (eventually) head to the Senate, where the Republican majority is expected to acquit the President.

TheEspionage Act of 1917is aUnited States federal lawpassed on June 15, 1917, shortly after the U.S. entry intoWorld War I. It has been amended numerous times over the years.It was intended to prohibit interference withmilitary operationsorrecruitment, to prevent insubordination in the military, and to prevent the support of United States enemies during wartime. In 1919, theSupreme Court unanimously ruled throughSchenck v. United Statesthat the act did not violate thefreedom of speechof those convicted under its provisions. Theconstitutionalityof the law, its relationship to free speech, and the meaning of its language have been contested in court ever since.

Government employees are obviously quite often in the best position to know about government engaging in questionable, if not entirely illegal or unconstitutional, activity. Edward Snowden’s revelations about the existence of a massive domestic spying program set off a national debate about the relative importance of national security, and anti-terrorism efforts, versus informational privacy.

Because intelligence agencies invariably operate in largely non-transparent ways, only an insider --- a whistleblower --- could credibly confirm the existence of government domestic spying programs like PRISM. What’s more, domestic surveillance programs could easily be used in ways that thwart or inhibit democratic accountability --- for example, by using embarrassing personal information to discredit political opponents of the incumbent President. Or by aiding or inhibiting the election of a sitting member of Congress—or even a Presidential candidate—through selective data dumps.

Truly, information is power --- particularly when the information is stolen from smart phones, email accounts, and web surfing habits. Very few people would want to share with Godand country all of their most intimate communications and online activities.

Regarding the government whistleblower who filed an anonymous complaint about the phone call made by President Trump to the President of the Ukraine,employee speech about a matter of public concern enjoys First Amendment protection, but speech related to a matter of private concern does not. If President Trump engaged in an act of official misconduct, then that action is of public concern. So, the whistleblower’s complaint would be (or is) protected speech.

The fundamental promise of whistleblower protection is to create a safe space for awitness of wrongdoing to come forward and report it --- and, for the sake of his or her professional reputationor even physicalsafety, to remain anonymousin doing so. Nothing chillstruth-telling in the halls of power like the risk of retribution, and no risk ismore harrowing than unmasking potentially impeachable offenses by aPresident.

So, it may come as little surprise that Donald Trump--- with his legacy and potentially even his job hanging in the balance --- would turn the promise of whistleblower protection on its head. He haslaunched a spiteful and bitter campaign to publicly identify the person who exposed his problematic July 25, 2019 phone call with the President of Ukraine.

Trump has backed up his demand with a concocted accusationthat the whistleblower's nine-page account delivered to Congress is riddled with errorand lies. Actually, nearly every element of the whistleblower's "urgent concern" complaint is exactly right, according to those notes and subsequent testimony ofdiplomatic witnesses:

►Trump asked Ukrainian President Volodymyr Zelensky to investigate former Vice President Joe Biden and his son Hunter. True.

►Trump raised with Zelensky a conspiracy theory that a U.S. cybersecurity firm worked with Ukraine to frame Russia asinterfering in the 2016 election. True.

►Trump told Zelensky to speak with Trump private lawyer Rudy Giuliani and U.S. Attorney General William Barr about such allegations. True.

►A White House meeting for Zelensky wascontingent on opening a Biden investigation, and withholding military aid might also have been anincentive. True.

►The White House later hid records of the Zelensky call. True.

The Supreme Court curtailed its protection of government employee speech inGarcetti v. Ceballosin 2006.InGarcetti, Richard Ceballos, a deputy district attorney working in the L.A. County District Attorney’s Office, was subjected to discipline for testifying in open court his belief that a police officer submitted an affidavit in support of a request for a search warrant that contained “serious misrepresentations.” Ceballos did this even though his supervisors had decided not to amend or correct the police officer’s affidavit in support of the warrant request. Following his testimony, Ceballos claimed that he was reassigned and subjected to other forms of retaliatory action by his government employer.

Writing for theGarcettimajority, Justice Anthony M. Kennedy found that even if speech relates to a matter of public concern, a government employee may not claim the protection of the First Amendment if the speech falls within the scope of the employee’s work-related duties. He explained that “[a] government entity has broader discretion to restrict speech when it acts in its role as employer, but the restrictions it imposes must be directed at speech that has some potential to affect the entity’s operations.” Consistent with this view, theGarcettimajority held that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”

UnderGarcetti, if a government employer fires an employee based on antagonism toward comments regarding a matter of public concern, the employee enjoys no First Amendment protection if the speech arguably falls within the scope of the employee’s duties. As a general matter, when an employer demotes an employee out of a desire to prevent the employee from engaging in political activity that the First Amendment protects, the employee is entitled to challenge that unlawful action under the First Amendment.

This result occurs because to permit a government employer to retaliate against an employee --- whether based on real or imagined partisan commitments --- would discourage employees (both the employee discharged or demoted) and his or her colleagues --- from engaging in protected activities because the discharge of one employee tells the others that they engage in protected activity at their peril.

Moreover, when an employer acts on a mistaken belief in the context of a partisan firing, the First Amendment still confers protection because the consequence is that a discharge or demotion based upon an employer’s belief that the employee has engaged in protected activity can cause the same kind, and degree, of constitutional harm whether that belief does or does not rest upon a factual mistake.

BEFORE YOU WRITE THE SECOND PART OF YOUR REQUIRED ESSAY, READFREEDOM OF THE WHISTLEBLOWERS: WHY PROSECUTING GOVERNMENT LEAKERS UNDER THE ESPIONAGE ACT RAISES FIRST AMENDMENT CONCERNSBYCATHERINE TAYLOR AT



HTTPS://WWW.NLG.ORG/NLG-REVIEW/ARTICLE/FREEDOM-OF-THE-WHISTLEBLOWERS-WHY-PROSECUTING-GOVERNMENT-LEAKERS-UNDER-THE-ESPIONAGE-ACT-RAISES-FIRST-AMENDMENT-CONCERNS/.

For the purpose of writing this second part of your informal essay (four full pages), take into consideration the discussion I just provided you above --- but do not repeat it in your essay. By that I mean that I want your opinion, your thinking on the issues mentioned below --- not a word-for-word regurgitation of what I provided in the instructions/discussion. Please address the following:

(1)(a) Since, in the case ofGARCETTI V. CEBALLOS(2006), the Supreme Court held that public employees have no First Amendment protection for statements they make in the course of their professional duties, do you think that the anonymous whistleblower who complained about President Trump’s phone call toUkrainian President Volodymyr Zelensky should be publicly identified and fired from his or her position in the federal government for engaging in unprotected speech?or

(b) Do you think that the speech is protected speech under the
WHISTLEBLOWER PROTECTION

ACT OF1989
and the whistleblower should remain anonymous and employed in the United States
intelligence community? (You can googleWHISTLEBLOWER PROTECTIONACT OF1989and find information describing it at various sites, includingWikipedia).

(2) Do you think the whistleblower engaged in an espionage conspiracy with another “leaker” of information? What is espionage? President Trump said in September 2019
that whoever provided awhistleblowerwith details of his phone call with the President of Ukraine was “almost a spy” and suggested that the “leaker” had committed treason. The President said: “You know what we used to do in the old days when we were smart with spies and treason, right?”“We used to handle it a little differently than we do now.”

(3) In your educated opinion, did the House of Representatives do the “right thing” by impeaching President Trump on December 18, 2019? What is the definition for “impeachment” of a President of the United States? For what actions can the President be impeached by the House of Representatives? Did President Trump’s telephone conversation with Ukrainian President Volodymyr Zelensky meet the definition of an action for which a President can be impeached?

(4) If and when the House of Representatives submits theArticles of Impeachmentto the United States Senate, should the Senate remove President Trump from the Presidency at the conclusion of a Senate trial on theArticles?

(5) Based on what you have read in preparation for writing this part of the essay, in your educated opinion shouldthe President’s interest prevail over the First AmendmentFree Speech rights of the anonymous whistleblower? If you conclude that the President’s interest should prevail, what should the government do regarding the whistleblower (for example, fire the whistleblower, charge the whistleblower with a crime and prosecute him or her)?

Before you start writing your essay, first do readings regarding the subject matter to educate yourself about what you need to write.I want your opinion, but I want your educated opinion --- not some seat-of-the-pants comments by you, based on nothing more than your own biases or prejudices. If you don’t read the articles and instead you submit an essay filled with nothing more than your guesses, “feelings”, and prejudices, the grade you will receive for such an essay will be devastating for your course grade. I want you to engage in critical thinking and critical writing. If you are unsure about your writing ability, you might want to make use of the services available at the UTRGV Writing Center.

Your essay should beno lessthan seven (7)fullpages long. Although your essay must be at least seven (7) full pages, please do not submit more than eight pages. Youdo notneed to provide citations to any sources that you may have read to develop your thinking regarding the issues mentioned above.I want your essay to be composed of your own original, critical thinking --- not a recitation of what others have said.

As always, plagiarism will result in an “F” grade on the essay and dismissal from the course---either by you voluntarily dropping the course or your plagiarism being presented to the Dean of Students along with me dropping you from the course.

The essay will be graded on a letter basis by me, using the A, B, C, D, F designations as determined by me, at my discretion. An “A” on the essay will be a 95, a “B” will be an 85, a “C” will be a “75”, and a “D” will be a “65”.Anything below a “D” will be a “zero” (0). I will integrate the letter grade you receive with the numerical scores you receive on the five tests. Your final course grade will be a letter grade: A, B, C, D, or F.

You will not receive the essay back from me. Since it may contain private personal information from you, your essay will be shredded (if I print it) or deleted from my computer (if I just read it after opening it from your email) after the essay has been graded and the grade recorded.
You are required to answer the questions above so that I can assess your comprehension of the material related to the questions, and, as I said, your ability to think and write critically.