Appeals Court Should Affirm Protection of Public Employees’ Off‐Job Speech

·2 min read

When may the government fire or discipline public employees for off‐the‐job speech? Salvatore Davi is a hearing officer at a New York state agency that hears appeals of welfare claims. In a private Facebook discussion Davi made comments critical of permanent welfare dependency and argued that a public safety net should be intended to help people regain self‐sufficiency. These comments offended another member of the group, who complained to Davi’s employer and leaked a copy of his comments to a legal activist group representing welfare recipients.

Under the First Amendment of the United States Constitution, “Congress shall make no law … abridging the freedom of speech.” This makes it clear that the government generally cannot censor the speech or expression of private citizens. The line becomes hazier when the government is acting as an employer: as with any other employer, the government must have some ability to discipline and control its employees if it is to function at all.

The Supreme Court set forth the standard for balancing the free speech rights of public employees against the government’s interest as an employer in Garcetti v. Ceballos: First, the government employee must be speaking as a private citizen. Second, the topic must be a “matter of public concern.” Finally, even if the first two tests are satisfied, the speech will not be protected if the government can demonstrate that the employee’s speech would impede its ability to perform its duties.

When (via the informer) the New York Office of Temporary and Disability Assistance (OTDA) learned of Davi’s comments it attempted to fire him. He challenged the firing and prevailed in district court, which granted him partial summary judgment. OTDA has appealed that decision to the Second Circuit.

The Cato Institute and the Institute for Free Speech have filed an amicus brief in support of Davi arguing that the OTDA’s attempt to fire him violates the standards set forth in Garcetti and improperly penalized a public employee for the expression of ideas away from the workplace. Davi’s comments do not create cause for recusal under the agency’s rules. Moreover, whatever public circulation of his comments there may have been arose not by his choice but through the actions of a censorious and meddlesome third party. Discipline in such circumstances, by empowering informers and the most easily offended, could chill a particularly wide range of off‐job speech by public employees. That a statement is made on social media does not narrow the scope of First Amendment protection it enjoys. The appeals court should affirm the decision and protect both individual rights and the health of the marketplace of ideas.

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Original Author: Walter Olson

Original Location: Appeals Court Should Affirm Protection of Public Employees’ Off‐Job Speech

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