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.