What if a federal employee gives the president the finger?

Photographs can help define an era. Boomers grew up with enduring images that became classics. The kid poking a flower down the National Guard soldier’s rifle. The body of the student shot by an Ohio guardsman at Kent State University. Lyndon Johnson showing off his gall bladder surgery scar. Mohammed Ali jokingly punching the Beatles. You can buy framed copies of that one.

Earlier generations had their own pictures. The 1936 migrant woman, the Hindenburg zeppelin crashing in flames, men sitting on the suspended girder during the Empire State Building’s construction.

Social media has made a big difference. The earlier defining images generally depicted either important events or important people. Broadcast and print space was expensive, so no one wasted it on the trivial. Now a billion trivial photos a day are taken, posted, and seen by many.

Lately, we’ve learned how this can bite people who might make a momentary indiscretion. Like the Northern Virginia bicycle commuter who flipped off President Trump’s motorcade. Juli Briskman worked as a federal contractor. When she was identified, her boss at Akima fired her. That unleashed a torrent of opinionated sermonizing, which often passes for reporting these days.

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You might think she’s a childish fool to flip off the president. You might think she’s a wheeled patriot who said what needed saying.  But if you are a contractor or federal employee, what are the legalities?

I checked with employment attorney Declan Leonard, of Berenzweig Leonard in Washington. He says there’s really no difference in protection whether or not an employer is a federal contractor. In Virginia, as in most places, people work as employees at-will. Unless they’re in a certified bargaining unit, they can generally be let go without cause. In this case, the company said Briskman violated its social media policy.

The question of First Amendment rights came up. The First Amendment protects people from reprisal by the government, but not from private employers, Leonard pointed out.

Federal employees have more free speech latitude because their employer is the government. But they aren’t allowed to disrupt the workplace, nor engage in political activity on the job or while representing themselves as federal employees.

People can argue whether Briskman’s gesture was wise or mature. But she hardly invented the gesture. Former Vice President Nelson Rockefeller returned the gesture to a group of hecklers back in 1976. That photo also went viral, shocking the nation. People said at the time it coarsened political discourse forever. I doubt it. Rockefeller’s was a spontaneous and short-lived thing, done in response to obnoxious hacklers. In truth, American political discourse has never been dainty. Ronald Reagan, George W. Bush, and former Canadian Prime Minister Pierre Trudeau are among the many public figures who have flipped the bird publicly.

The “bird” even has a Wikipedia page. It’s where I learned the earliest documented incident of the gesture is found in an 1890 baseball team picture. (Last guy on the left, back row.)

No doubt Briskman, after her brief celebrity, will find another job. She may have violated a corporate social media policy, but she joins a long, long tradition of colorful communication.