How the First Amendment does and does not protect racist city workers
By Sherry F. Colb
(FindLaw) -- On June 24, federal Judge John Sprizzo of the Southern District of New York issued an extremely controversial opinion in the case of Locurto v. Giuliani. The judge ruled in favor of three men -- two firefighters and a police officer, all employed by the City of New York -- who rode on a racially offensive float in the Broad Channel, Queens Labor Day Parade. The three men were off duty at the time.
After the incident came to light, then-Mayor Rudolph Giuliani announced that "any police officer, firefighter, or other city employee" involved in the Labor Day Parade would be terminated.
Subsequently, the three men were fired. In response, they sued the City and various City officials, claiming to be victims of retaliation for their exercise of free speech.
After a trial, Judge Sprizzo, sitting without a jury, concluded that the City had violated the First Amendment by firing the plaintiffs for the content of their speech. The result may be that three racists rejoin the ranks of New York's finest and New York's bravest.
But it doesn't have to be that way. The three men's behavior was more than offensive. It also may have evidenced an unfitness to serve as firefighters and police officers, duty-bound to serve African-American citizens. Thus, while the plaintiffs may deserve compensation for the infringement of their rights, they should not be reinstated.
The float and the three men's conduct
The float in question was entitled "Black to the Future: Broad Channel 2098." Meant to win the prize for funniest float in the parade, it exhibited a strong antipathy for racial integration -- particularly, the integration of Broad Channel, Queens.
The float consisted of a flatbed truck on top of which the plaintiffs sat with a large bucket of fried chicken and watermelons. The men wore blackface and Afro wigs made of mops, and they mockingly engaged in various civil rights chants, including "No justice, no peace."
Bringing the display to a new low, one of the plaintiffs announced, "Look what they did to our brother in Texas, we would not allow them here...." and proceeded to hang by his hands from the back of the truck. In carrying out this stunt, he was manifestly parodying the dragging murder of James Byrd, Jr. -- a black man whom three white men killed in Jasper, Texas. To the cheers of spectators, the firefighter repeated his display.
Judge Sprizzo: A loose cannon
The law on the question of employee speech is complex, and Judge Sprizzo is a known maverick. Several years ago, for example, he refused to punish two anti-abortion protesters who had, on more than one occasion, blocked access to a clinic.
Judge Sprizzo explained his ruling by noting that the protesters -- though acting in violation of the law -- had been motivated by their conscience and a belief that abortion is wrong, and thus -- according to the judge -- should not have to go to jail.
From a legal point of view, the abortion protest decision was obviously wrong and effectively demonstrated that Judge Sprizzo does not necessarily follow the law as it is, but may on occasion march to the beat of his own Constitution.
Regardless of one's view of the merits, however, the case involving the racist parade float raised critically important issues that deserve our attention. Whether or not we ultimately believe that Judge Sprizzo made the right decision, the First Amendment questions he addressed are difficult and fascinating ones.
Separating speech from its practical consequences
In his opinion, Judge Sprizzo reiterated a number of times that the government may sometimes terminate employees whose continued employment will cause disruption to the municipality in its efforts to carry out functions for which the employees were hired.
Thus, the City could have legitimately fired the plaintiffs because of the community's likely reaction to the racist float -- interference with the police or fire departments' missions, morale, or community recruitment efforts.
If disruption is reasonably predicted, Judge Sprizzo explained, then a court will perform a balancing test in which it determines whether the potential disruption is sufficient to outweigh the employee's interest in expressing herself on a matter of public concern.
As the judge acknowledged, the government has greater power, for First Amendment purposes, when it acts as an employer than when it acts as a sovereign (or regulator of behavior).
If you work for the mayor and call him a fascist, for example, he may be able to fire you, even though private citizens can call him a fascist without fear of reprisal.
In spite of this distinction between government-as-employer and government-as-sovereign, however, we retain robust free speech rights against government censorship, even when that censorship takes the form of employment sanctions.
Thus, if we speak on a matter of public concern, and if our job penalty is motivated by the content of our speech, rather than by worries about disruption, then the government violates our First Amendment liberties by penalizing us.
Judge Sprizzo ultimately concluded that the city, in firing the plaintiffs, did not act out of a concern about public disruption resulting from the float but rather, in an effort to silence a racist message. He therefore found that the firings violated the First Amendment.
The judge cited much evidence to support his factual conclusion that it was the content rather than the functional consequences of the plaintiffs' speech that motivated their discharge. This included the fact that the Mayor's office supported reinstating four police officers who had killed a West African immigrant named Amadou Diallo, despite the considerable public disruption caused by that killing.
Judge Sprizzo thus decided that it was the message of the racist float, and not the potential impact on public service, that had motivated the City.
Looking beyond motivations
If we agree with Judge Sprizzo about the City's motives, does it necessarily follow that the government has to ignore a police officer's (or a firefighter's) racist speech, in the face of the City's obligation to provide "equal protection" to every citizen?
Put another way, can't municipalities fire people because of their statements, if those statements reveal something significant about the speaker's inclination and fitness to perform his job competently and fairly? Can't speech, in other words, however free, serve as a potent diagnostic tool in assessing an employee's capacity?
If the answer to this question is yes, it does not mean, of course, that the Mayor can simply fire any employee who expresses offensive views.
Had the plaintiffs worked as janitors or elevator operators for the City, for example, then their views would almost certainly have been irrelevant to their jobs. Barring any large-scale public disruption, it would therefore have been appropriate for a judge to order racist janitors and elevator operators reinstated in their jobs if they were fired for participating in the parade.
As long as they cleaned and operated machinery in a competent and evidently unbiased fashion, their political views would have belonged to them, as First-Amendment-protected matter.
In the case of a police officer or a firefighter, however, the level of racial hostility and animus displayed in the plaintiffs' float evidences a failure to take seriously the value of African-American life, a failure that bears directly on the speakers' ability to enforce the law, prevent crime, and save lives equally, as their jobs require them to do.
Beyond a colossal lack of judgment, then, the plaintiffs' role in the Broad Channel Labor Day Parade calls into serious question their competence to carry out their responsibilities.
As a member of the Massachusetts Supreme Judicial Court, Justice Oliver Wendell Holmes, Jr. once wrote that the "[p]etitioner may have the right to talk politics but he has no constitutional right to be a policeman."
Holmes thought that the state, when acting as an employer, had no duty whatsoever to respect the free speech rights of its employees, a position clearly at odds with current U.S. (and Massachusetts) law.
But even if Holmes's aphorism no longer stands for a general rule of law, it seems nonetheless to capture a deep truth about the facts of the Locurto case.
Speech as evidence
One way of thinking about speech is as evidence of what a speaker is capable of doing. A public school math teacher who announces his strong belief that girls are stupid and unfit to study math cannot be expected to do a fair job of educating girls in mathematics, as his position requires him to do. A Humane Society employee who says that animals deserve to suffer cannot be trusted to provide nurturance and love to homeless animals. And a firefighter who finds humor in the lynching of a black man cannot be trusted to risk his own life to protect the lives of black men, women and children.
If -- as Judge Sprizzo concluded -- the plaintiffs in Locurto v. Giuliani were fired for the wrong reasons, for their political views divorced from the evidentiary significance of those views, then perhaps they should recover some remedy. The city, after all, cannot just fire its employees for holding and expressing offensive views.
The remedy should not, however, be the reinstatement of the firefighters and the police officer. Like an incompetent surgeon who is fired because he is a Christian, racist police and firefighters can be victims of wrongful termination and nonetheless deserve to lose their jobs, because they are evidently unfit to protect and to serve.