Originally posted by Boxing Pythagoras
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We agree that this case does not merit the dismissal and isn't a constitutional issue as framed by the City of Atlanta (it is a constitutional issue but the other way around). The disagreement is that you think the law governing it comes from the incorporation of the First Amendment (which didn't happen when you think it did) and it doesn't. Even in the hypothetical case, he's acting as an individual, not as an actual representative of government. If his office issued some actionable policy that denied or restricted a citizen's rights then there is constitutional issue. But not when Bob, the sewer cleaner, tells people something they don't want to hear - even if Bob steps outside the constitutional protection (porn, yelling fire) - Bob being a government employee does not make his pronouncements constitutional issues even if he misrepresents his department (that is a fraud issue and actionable).
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