Arrest-Gate 11: The Hard Case

     For free speech advocates, the arrest of Skip Gates was an easy case, involving no conflicts of rights or interests, as I suggested last week: his right to insult a cop was obvious, and his alleged insults posed no appreciable threat of violence or other lawlessness.  It's the reaction to his arrest that's producing hard cases: In Boston a police officer has been suspended for allegedly writing a racist email that referred to Gates as a "banana eating jungle monkey."  In New York, a press aide to the Manhattan Borough President has resigned, after posting racially charged comments on her facebook page, and referring to Obama as "O-dumb-a."  (You can find her comments in the New York Times report.)

A police officer who regards African-Americans as jungle monkeys and a press aide to a democratic politician foolish enough to insult the Democratic president and post puerile, arguably racist comments on her facebook page may indeed be ill-equipped for their jobs.  Still, as public employees (I'm assuming that an aide to a borough president is a public employee,) they are imbued with First Amendment rights.  These controversies pit their individual speech rights against the public interest in their job performance, or, (put another way,) the government's obligation to provide fair and effective public services.  
 
How might a federal court approach these conflicts?  In the 2002 case of Pappas v Guiliani, involving the firing of a NYPD employee for anonymously disseminating racist, anti-semetic anti-Semitic material, the 2nd circuit explained: "Where a government employee suing for violation of the First Amendment establishes that he was terminated by reason of his speech 'upon a matter of public concern,' the Supreme Court has instructed that the court's task is 'to arrive at a balance between the interests of the... citizen, in commenting on matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.' "  The 2nd circuit upheld the termination in this case, with one now prominent dissent from Sonia Sotomayor, who wrote in defense of the employee's First Amendment rights.

But, as Sotomayor stressed, Thomas Pappas had a particularly strong First Amendment claim, while the Police Department's interest in firing him was relatively weak:  Pappas had no policymaking authority or contact with the public; (he was a computer operator, not a police officer walking a beat;) and he had spoken out anonymously.  Any harm to the department occasioned by his speech resulted from the departmental investigation. ("It ultimately required the investigatory resources of two police departments to bring the speech to the attention of the community," Sotomayor noted.)

The Boston Police Department seems to have a stronger case for disciplining, if not firing, Justin Barrett:  He's a police officer at least partly responsible for publicizing his remarks about Gates; he reportedly emailed them to his colleagues in the National Guard and, according to the Boston Globe, a copy of his email was sent to a Globe columnist (by whom is unclear.) But the Police Department has also contributed greatly to the publicity surrounding this case.  Joined by leaders in the black community, Police Commissioner Edward Davis held a press conference today to condemn Barrett's remarks and affirm that "these racist opinions have no place in our department or our society and will not be tolerated."

The commissioner was maybe half right. "In our society," racist opinions must be tolerated legally; the First Amendment rights of bigots are not limited by an imagined public interest in inoffensiveness.  In our police departments, racist opinions should not be tolerated socially, as matter of departmental culture; must they be tolerated legally?  That depends.  Barrett's email may have displayed his unfitness for his job.  He will, however, contest an effort to fire him, according to his lawyer, who noted that the email was "a private email from a private computer at home."  Here comes a hard case.


UPDATE:  Today's Boston Globe reprints the text of Police Officer Justin Barrett's email. (Aptly described by the Police Commissioner as "venomous," it includes the appalling but not entirely surprising suggestion that suspects have no rights.) The Globe offers additional factual clarifications, noting that Barrett sent his email to columnist Yvonne Abraham in response to her column defending Gates; that he copied it to friends and colleagues; and that it was brought to the attention of his superiors by "furious" fellow patrol officers.  The Globe also notes that Barret has no record of misconduct, so despite his "venomous" speech and the disturbing attitudes it reflects, this remains a hard case.

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Wendy Kaminer is an author, lawyer, and civil libertarian. She is the author of I'm Dysfunctional, You're Dysfunctional.

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