If you’re looking for some more insight into Judge Sotomayor’s approach to solving constitutional problems, consider her dissent in the First Amendment case of Pappas v. Giuliani, which involved a police officer fired after he had been discovered to have mailed anonymous racist materials to various nonprofit organizations that had sent him fundraising solicitations.
As I discuss in an article to be published by the Duke Law Journal this fall, the police department’s defense in Pappas illustrates government’s increasing willingness to claim even the off-duty speech of its employees as its own. In these cases, the government characterizes the worker’s speech away from work as subject to the government’s control not because of what it reflects about the employee’s own ability to perform her job, but rather because of what it may communicate about the government that employs her. Other examples include police officers discharged for appearing in or maintaining sexually explicit websites, firefighters fired for participating in a holiday parade that featured mocking racist stereotypes, and a university vice-president disciplined for writing a newspaper column questioning gay rights. These often make for very challenging cases. To be sure, the government’s concerns can be substantial: consider, for example, police departments’ interest in making clear their commitment to evenhanded law enforcement regardless of race. But absent any limiting principle, this trend suggests that certain individuals may become unemployable for many government jobs purely because of their unpopular or controversial off-duty expression with which the government does not want to be associated – e.g., marching in a gay pride parade or blogging for or against abortion rights or immigration reform.
In Pappas, the Second Circuit majority upheld the officer’s termination.
It expressed concern not that his speech indicated that he would enforce the law in a discriminatory manner (indeed, the officer was assigned to a computer position that did not require public interaction), but instead that it would impair public perceptions of the views of the rest of the department:
For a New York City police officer to disseminate leaflets that trumpet bigoted messages expressing hostility to Jews, ridiculing African Americans and attributing to them a criminal disposition to rape, robbery, and murder, tends to promote the view among New York’s citizenry that those are the opinions of New York’s police officers. The capacity of such statements to damage the effectiveness of the police department in the community is immense.
Implicit in this reasoning is the premise that certain categories of government workers — e.g., law enforcement officers — are so identified with their public employer that they cannot escape their governmental role to be perceived as speaking purely as private citizens even when away from work.
In contrast, rather than assuming that police officers’ off-duty speech necessarily poses a substantial threat to government’s own expression, dissenting Judge Sotomayor preferred a more fact-specific standard that would instead require the government to prove such a threat on a case-by-case basis. She thus focused on the specific context of the officer’s speech, noting that his job involved neither policymaking nor public contact (he was assigned to a computer station), that his speech made no reference to his employment in law enforcement, and indeed that it was intended to be private and anonymous. Under those particular circumstances, Judge Sotomayor found no significant threat to the department’s legitimate interest in credibly communicating its commitment to racial equality.
Each of these approaches has its strengths and weaknesses, as I discuss in the article. But by carefully attending not only to the police department’s substantial expressive interests but also to whether those interests were actually undermined by the employee’s speech, Judge Sotomayor offered a nuanced opinion in what I personally find a very difficult case. It reminded me of Justice Souter’s view of the characteristics of good judging, recently recalled here by Chad Oldfather: “suspicion of easy cases, skepticism about clear-edged categories, modesty in the face of precedent, candor in pitting one worthy principle against another, and the nerve to do it in concrete circumstances on an open page.”
Posted by Helen Norton on June 2, 2009 at 09:06 PM