Ayo Kimathi And The Freedom To Hate

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Ayo Kimathi, an African-American, is an acquisitions officer for Immigration and Customs Enforcement ( a section of the Department of Homeland Security), and has been, apparently without incident, since 2009.  He also operates and authors a web site, War on the Horizon, which predicts an “unavoidable, inevitable clash with the white race,” and explains how to prepare for it.

The latter fact is none of the government’s business, nor yours, nor mine, and certainly not that of Sarah Palin, who in her own inimitable style of making ignorance catchy and cute, exclaimed on her Facebook page, “His side ‘job’ running the ‘War On the Horizon’ website was reportedly approved by supervisors. Really, Fed? Really? Unflippingbelievable!”

No, it’s not. You can scour the government regulations and ethics requirements all you want—I have (Palin hasn’t.) There is nothing in them that prohibits a government employee in the Executive branch from espousing any political position he pleases, or that bans outside activities that do not interfere with the duties of the employee or constitute a conflict of interest. Nor should there be. As I read the rules, Kimathi had no obligation to ask permission to run his website, because his supervisor had no authority to stop him.

It is called freedom of speech, my friends.

Deal with it. Or rather, cherish it.

True,the inflammatory website criticizes whites, gays, those of mixed race, and blacks who integrate with whites. Those opinions may be ugly, but they are legal. Hate is legal. Stupidity is legal. All are protected by the Constitution. The Southern Poverty Law Center, which will often designate as a “hate group”  organizations that dare to oppose its generally virtuous goals, flagged Kimathi’s role in running the site, and he was promptly put on paid administrative leave. The website is irrelevant to Kimathi’s performance of his duties, which he appears to do well, or well enough. A private organization could fire him for creating embarrassment and negative opinions about its business, but the Federal government may not. This case was made for the ACLU; let’s see if they take it.

Frankly, it should be far more disturbing to us that our  government moves to punish an employee because the Southern Poverty Law Center finds his opinions hateful than the fact that an acquisitions officer for Immigration and Customs Enforcement thinks there is going to be a race war. He has a sacred right to espouse whatever beliefs he chooses outside the workplace. A government, however, that seeks to punish citizens within its authority for what they say and write is abusing power, chilling expression, and a menace to democracy.

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Sources: Huffington Post 1, 2, 3

 

40 Comments

Filed under Citizenship, Government & Politics, Race, Religion and Philosophy, Rights, The Internet, U.S. Society, Workplace

40 responses to “Ayo Kimathi And The Freedom To Hate

  1. Jj

    The law is what it is, and if this Federal Employee is permitted to conduct a racist website, so long as it does not infringe on his duties or his job performance, then what is to stop the millions of other Federal employees, including our soldiers, from doing the same? The Federal Government could be the employee center for ugly behavior, with impunity.

    And it doesn’t stop with race… Anti religious, misogynist, anti gay websites are all fair game.

    Seems to me the Feds and its many minorities have a lot more to lose than anyone else if this conduct is permitted by its employees

  2. Jack – is there anything in the Regs about not bringing unnecessary negative attention to the agency? I know a lot of companies have such rules (it’s why spokesmen get fired after doing something horrible, like calling a group run by the opposition and launching into a foul-mouthed tirade), so perhaps the Govt has similar ones?

    Also – and I’m just putting this out there – maybe someone who thinks we will soon have an honest-to-god shooting war between the races (and gives advice on how to get ready to kill as many as possible those who are deemed to be “on the other side”) shouldn’t be working in the public sector, period.

    I’m just sayin’…

    • No such regulation, and if there was, it would be too vague to enforce or stand judicial scrutiny, in my view.

      • Jj

        Fox had a more detailed article..
        ‘ Kimathi, who works for U.S. Immigration and Customs Enforcement, which is a division of DHS, reportedly got the go-ahead from the government to create and maintain his website.

        That’s because as a law enforcement agency employee, he is required to get permission in writing if he engages in outside activities which includes everything from working a second job to volunteering.

        The SPLC says Kimathi obtained official permission but did it by misrepresenting the true nature of his site.

        “He told management that it was an entertainment website selling videos of concerts and lectures,” the report said. “He called it simply WOH, never saying that WOH stood for War on the Horizon.’

        Read more: http://www.foxnews.com/politics/2013/08/22/dhs-employee-spends-spare-time-promoting-race-war-against-whites/#ixzz2d6vnawTG

        Suppose there’s blame to spread around on this one.

        • Thanks for the link. There is typical Fox reporter sloppiness there, however: the regs may require permission for “everything from working a second job to volunteering,” but as I read the regs, operating your own website doesn’t come in that range, anymore than painting your kitchen or playing poker on Fridays. He isn’t moonlighting, any more than I am. Nor could the department tell him he couldn’t play the MC in “Cabaret,” or breed dogs. He didn’t have to ask. I wouldn’t have. He isn’t in law enforcement. Would the janitor need permission? I doubt it very much. DOHS doesn’t have to say it doesn’t condone his website….it’s not connected to the agency.

          Now, it is true that the Agency might have its own regulations that go beyond the basic requirements for employees of the executive branch, and also true that they might be unconstitutional as hell, but that they are still operating because they haven’t been challenged yet. If there are specific regulations applying here, I haven’t found them. The government cannot say ‘we can fire you for having opinions we don’t like and expressing them in your private capacity”…and it shouldn’t.

          Read more: http://www.foxnews.com/politics/2013/08/22/dhs-employee-spends-spare-time-promoting-race-war-against-whites/#ixzz2d6yVmdSk

          • Aren’t a lot of the possible applicable regulations within the body of “administrative law,” such that they are exempt from judicial review? There’s the workaround to that pesky old Constitution.

  3. lydiasellerofpurple

    Actually, it would help if he was not in a department created to “protect us” better. ALL of us. Not sure you have a leg to stand on with this one. Did he have to take an oath or anything for his job about protecting the US? Does that include white people? Not sure. But guys like him might make it necessary.

    And free speech is free until it threatens a group with death for simply being of another race. Then it becomes a threat to be taken seriously.

    He might win but then who really wins here?

    • There is no question that he would win, and it is not his department that matters, but his job. This has nothing to do with procurement, nothing at all.

      We all benefit. We benefit when the government does not presume to tell us how to think.

  4. lydiasellerofpurple

    What if I worked for the FBI in some administrative capacity and ran a website off hours on how to smuggle drugs or kidnap children? Would that be free speech? Or would I be fired? investigated and watched?

    • That would be an outside activity that undermined your government responsibilities; a likely conflict of interest, and almost certainly forbidden under the ethics rules applying to you. Advocating and facillitating illegal conduct is obviously forbidden for a law enforcement official.

      • Jack, I believe in scanning that link you shared, I skimmed over a passage specific to, as you say, “undermining your government responsibilities.”

        • I see no way to interpret such a website as having any bearing on procurement whatsoever.

          • Unless you happen to be white, and have a business with contracts for supplying various things to ICE. It would certainly make ME question any changes that occurred…

            • It’s an argument. I don’t think its a particularly good faith argument. If you are hanging the principle on a supposed nexus between the belief and the job, that’s really not related to the principle I’m pointing out. I don’t think there is a nexus, so my argument is based on that state of affairs. The question is, can you fire the janitor for running such a website, because someone designates it a “hate site”? The answer is no.

  5. Steve

    I just need a logic check here. How do you determine that it is unacceptable for a private organization or church to be speak out against buggery because it might hurt someone’s feelings but have no problem with a racist, homophobic bigot who condones violence against his adversaries and controls who your tax dollars goes too? They are both just exercising their first amendment rights correct? Who are we to say what an acceptable idea to espouse is?

    ”The latter fact is none of the government’s business, nor yours, nor mine, and certainly not that of Sarah Palin,”
    You are wrong on this; it is our business when a public servant is condoning violence against segments of our population, has control of how our tax dollars are spent and is in a position to make decisions that can affect the success or failure of others.

    Simply, are you ok with this guy awarding a contract to black surpremists based on their political affiliation? What about to a company whose owner believes all gays should be burned alive?

    The first amendment won’t save this guy, he represents the US government and has to operate within its equal opportunity contracting guidelines, and his speech demonstrates he is a bigot and liability. Every time a contract is offered up competitors are going to challenge the selection based on this guy’s involvement making him a useless and costly employee.

    • Stretching oh so far beyond the pale…

      “How do you determine that it is unacceptable for a private organization or church to be speak out against buggery because it might hurt someone’s feelings but have no problem with a racist, homophobic bigot who condones violence against his adversaries and controls who your tax dollars goes too?”

      Huh? Whether I “have a problem” with either is not the issue. I don’t like either positions personally, but the government has no right to stifle either using state power. I think persecuting and fomenting hatred against individuals based on most things is unethical, but it is a breach of the nation’s values for the state to be the arbiter of it. Now conduct is something else. The state can and should protect people from being harmed by actions based on hate, as should we. There is a a difference between “unacceptable,’ which means wrong, and impermissible. I think you deliberately picked a word that blurs the difference.

      it is our business when a public servant is condoning violence against segments of our population, has control of how our tax dollars are spent and is in a position to make decisions that can affect the success or failure of others.”

      Elected officials are public servants, because they serve at our pleasure. A public employee is not a public servant. If the employee is in a position where his duties are likely to be or are adversely affected by his beliefs, then that is a conflict of interest. The standard you are advocating is absurdly strict, and assumes that any preferences at all would lead to conflicted decisions. We could never allow the government to hire Catholics, for example. You would have to show me (and a court) that the procurement duties had any likely nexus to the topic of the website. If he hasn’t denied contracts because of race, and isn’t in a position to, whether he happens to be homophobic and racist is, again, none of the government’s business.

      “Simply, are you ok with this guy awarding a contract to black surpremists based on their political affiliation? What about to a company whose owner believes all gays should be burned alive?”

      The first he cannot do, as it would be using criteria that he is not permitted to use. He would be fired for that regardless of any website he ran. The second? That’s Chic-Fil_A–what the owner of a legitimate business thinks is no business of the government either. I think Donald Trump is an ass and a birther, but if he can deliver on a contract, the government shouldn’t hesitate to award him one.

      “The first amendment won’t save this guy, he represents the US government and has to operate within its equal opportunity contracting guidelines, and his speech demonstrates he is a bigot and liability. Every time a contract is offered up competitors are going to challenge the selection based on this guy’s involvement making him a useless and costly employee.”

      If he operates under the equal opportunity contracting guidelines, nothing legitimately or ethically should happen to him. Whether his speech WILL in fact be used against him and cause him to lose his job is a different issue, and not my concern here. Yes, he’s probably screwed. That doesn’t make it right.

      • A public employee is not a public servant.

        Yes they are. It is kinda the definition of “public servant”.

        Are you suggesting that cops aren’t public servants?

        • Employees are not ‘servants.’ It’s a silly argument. Once public unions became the norm, any illusion of “public servant” should have been dropped. Elected officials, on the other hand, are not supposed to be in it for the money, but to serve the public good.
          I’m not going to be stubborm about it—if you want to call them servants, go ahead. They are no more servants than the guy who mows my lawn is a servant, not in attitude, not in function. But fine—they are servants.

          So what?

      • Inquiring Mind

        It’s a little different. My understanding is that as an acquisitions officer, he was in charge of buying weapons and ammunition. He also mislead his supervisors about his side business.

        That kinda warrants putting him on paid leave (essentially, a vacation) while they take a look, and make sure nothing untoward happened with the weapons and ammo he was supposed to buy for the government, like padding the orders and re-routing the excess to fellow militants.

          • Inquiring Mind

            Thanks. It’s less a first amendment issue than it is two other issues:
            1. He mislead his supervisors. That is already a huge red flag, and dishonesty ought to be grounds to terminate even a government employee.

            2. His position is a sensitive one. I’d be far less worried if he were a janitor. Instead, per Fox News’s reporting, he was responsible for purchasing weapons and ammo.

            He may very well need to be re-assigned to a different department (Agriculture, maybe?) where his views may not be as big an issue as it would be in a federal department which is involved in law enforcement (like ICE, CBP, etc.).

            • At this time, no one named “Kimathi” is indicated as named on US Government “restricted parties” lists. It is less clear whether the employee is properly registered with the State Department for the business he is engaged in. So Ayo can use his paid vacation time to ramp-up his arms sales, till he’s stopped. Just sayin’.

            • I’m not sure about the misrepresentation, are you? It sounds to me as if the supervisor who approved it is engaged in CYA, despite the fact that he might have looked at it the same way I did—“Hey, it’s your website. Just don’t break any laws.” Now that people are going nuts, he’s saying—“I would have NEVER approved of THAT!!!” I’d say there’s a good chance that he was properly informed and wasn’t paying attention.

  6. Steve

    but the government has no right to stifle either using state power.
    So they don’t have the right to fire anyone? Even when they have stated they wish actual violence on whites and gays? What a great work environment! You’re ok with him representing your interest, one who wishes all whites, uncle toms and gays dead? You think that is an acceptable and permissible attitude to be condoned of a representative of the US government?

    Elected officials are public servants, because they serve at our pleasure.

    http://www.merriam-webster.com/dictionary/public%20servant disagrees
    public servant : a government official or employee

    Moot point, he is still representing the US government and has chosen to make his private opinion public.

    . “The standard you are advocating is absurdly strict, and assumes that any preferences at all would lead to conflicted decisions. We could never allow the government to hire Catholics, for example”.

    If the Catholic was advocating slaughtering all the blacks when the time came then yes I think that would be a problem. I would love to be in that office when he thought it was killing time!

    ”You would have to show me (and a court) that the procurement duties had any likely nexus to the topic of the website. If he hasn’t denied contracts because of race, and isn’t in a position to, whether he happens to be homophobic and racist is, again, none of the government’s business.”

    And when the gay handcuff manufacturer won’t put in a bid, or doesn’t get selected and contests it (in gov contracting terms it is a very messy process) you don’t think the appearance of impropriety won’t be a problem? Haven’t you said that the appearance of impropriety or perceived conflicts of interest is enough to can someone due to the impact it may have on the performance of their duties? Although this is a government worker I would think that what he proposes has a greater detriment to his employer and duties then signing a petition or answering a question on a sports show.

    The first he cannot do, as it would be using criteria that he is not permitted to use.
    Yeah because no one has ever not utilized it………

    The second? That’s Chic-Fil_A–what the owner of a legitimate business thinks is no business of the government either.

    Correct but I guess you missed my point of him selecting them because of that…….

    “If he operates under the equal opportunity contracting guidelines, nothing legitimately or ethically should happen to him.

    I will keep this in mind next time I argue this point when someone is outed as religious bigots for believing something is a sin or the like and you think they should lose their job.

    • 1. The government does not have the right to fire someone for their protected speech and content-based communication, no, unless it otherwise interferes with their duties or ability to do same.
      2. That is still a misuse of the term, in my view. But I’ll accept the correction.
      3. My point about religion involved your assumption that one’s private beliefs make fair workplace decisions inherently untrustworthy.
      4. You can construct bizarre hypothetical where the appearance of impropriety would become an issue, yes. You can not fire someone on the presumption of bizarre hypotheticals. He would have an obligation to recuse himself in such a case, not to be fired beforehand.

      • Don’t you think this probably interferes with his abilities to do his job? Once it became common knowledge that he was running this website, wouldn’t it be extremely difficult for any white, gay, or member of other WOH condemned group to work with him, therefore undermining his ability to perform his job? I agree the speech should be protected, but it is hard to believe that once this got around the workplace his colleagues still wanted to work with him, which would justify the termination, regardless of the protected nature of the speech.

        • That’s their problem, don’t you think? If he treats everyone with respect on the job, you think it makes sense to fire him because other employees mistreat him?

          • Steve

            I will be back on in the am and will research but when I made the same point about ones personal beliefs in work place before you took issue with that view if I recall correctly. I will look for it.

            • I’m sure I did, because we weren’t talking about the GOVERNMENT as the employer. I’d fire Ayo in a second, but I’m not bound by the U.S. Constitution.

              • Steve

                I’m sure I did, because we weren’t talking about the GOVERNMENT as the employer. I’d fire Ayo in a second, but I’m not bound by the U.S. Constitution.

                Your saying that regardless of what effect his rights has on the performance of his duties it would be unconstitutional for him to be canned? I don’t have the agency regulations but the broader CFR and FAR does seem to have relevancy.

                § 2635.101 Basic obligation of public service.
                (13) Employees shall adhere to all laws and regulations that provide equal opportunity for all Americans regardless of race, color, religion, sex, national origin, age, or handicap.
                (14) Employees shall endeavor to avoid any actions creating the appearance that they are violating the law or the ethical standards set forth in this part. Whether particular circumstances create an appearance that the law or these standards have been violated shall be determined from the perspective of a reasonable person with knowledge of the relevant facts.
                § 2635.803 Prior approval for outside employment and activities.
                When required by agency supplemental regulation issued after February 3, 1993, an employee shall obtain prior approval before engaging in outside employment or activities. Where it is determined to be necessary or desirable for the purpose of administering its ethics program, an agency shall, by supplemental regulation, require employees or any category of employees to obtain prior approval before engaging in specific types of outside activities, including outside employment.

                https://acquisition.gov/far/current/html/FARTOCP03.html

                3.101 Standards of conduct.
                3.101-1 General.
                Government business shall be conducted in a manner above reproach and, except as authorized by statute or regulation, with complete impartiality and with preferential treatment for none. Transactions relating to the expenditure of public funds require the highest degree of public trust and an impeccable standard of conduct. The general rule is to avoid strictly any conflict of interest or even the appearance of a conflict of interest in Government-contractor relationships. While many Federal laws and regulations place restrictions on the actions of Government personnel, their official conduct must, in addition, be such that they would have no reluctance to make a full public disclosure of their actions.

                http://webcache.googleusercontent.com/search?safe=off&hl=en&gbv=2&q=cache:lY6gLizeyqEJ:http://waronthehorizon.com/site/%3Fp%3D4475%2Bsite:waronthehorizon.com+War+on+the+Horizon&ct=clnk

  7. This Kimathi character is looking more and more like a Major Hasan (of Fort Hood shooting infamy) by the hour – only, not (yet) doing the actual shooting all by himself.

  8. Free speech seems to be a one way street. All things moving in the direction of free speech for me (government) but not for thee (disgruntled citizen) There are tons of examples where government entities are much less generous to conservative free speech.

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