How far can a public safety officer — police officer or firefighter — go in exercising his or her First Amendment “free speech” rights? And how far can a fire chief or police chief go in limiting those rights?
Given the fact that free-speech issues are complex outside a public safety context, it's no surprise that the answers to the questions posed above are equally complex. Two cases illustrate this point.
The first is Pappas v. Giuliani, No. 00-9487 (2nd Circuit Court of Appeals, May 13, 2002). When New York Police Department officer Thomas Pappas received charity donation requests, he would sometimes use the business-reply envelope to mail racist and anti-Semitic materials back to the charity.
When the Mineola (N.Y.) Auxiliary Police Department sent Pappas a request for support, Pappas filled the business-reply envelope with fliers that “… asserted white supremacy, ridiculed black people and their culture and warned against the ‘Negro wolf … destroying American civilization with rape, robbery and murder,’ and declaimed against ‘how the Jews control the TV networks and why they should be in the hands of the American public and not the Jews.’”
When the Mineola Auxiliary Police Department received the envelope, department representatives turned it over to the Nassau County (N.Y.) Police Department. NCPD conducted a new mailing, using coded business-reply envelopes to see if the sender could be identified. One of the coded business-reply envelope was mailed back, again filled with racist and anti-Semitic flyers. NCPD traced the code to a post office box in the name of “Thomas Pappas/The Populist Party for the Town of North Hempstead.”
When NCPD investigators learned that Pappas was an NYPD officer, they notified NYPD's Internal Affairs Bureau, which developed and carried out a continuing coded-envelope sting operation. Internal affairs investigators then confronted Pappas, who admitted that he had sent the materials: “I was protesting and I was tired of being shaken down for money by these so-called charitable organizations. And it was a form of protest, just put stuff back in an envelope and send stuff back as a form of protest.”
Pappas was charged with dissemination of defamatory materials in the mail, found guilty and fired. He sued Mayor Rudy Giuliani and NYPD Commissioner Howard Safir in U.S. District Court, alleging violation of his First Amendment free-speech rights. The judge ruled in favor of Giuliani and Safir. Pappas appealed to the 2nd Circuit Court of Appeals.
In 1968, the U.S. Supreme Court wrestled with similar issues in Pickering v. Board of Education, 391 U.S. 563 (1968). In reaching a decision, the court came up with a method of analyzing public employee free-speech cases “… to arrive at a balance between the interests of the … citizen in commenting on matters of public concern and the interest of the … [public] employer in promoting the efficiency of the public services it performs through its employees.” Here's the Pickering test:
A public employee has a protected right under the First Amendment to comment on “matters of public concern,” no matter what the employer thinks.
If the employee's comments aren't on a “matter of public concern,” those comments are not protected.
(A tip for fire service managers: Most often when the court determines that speech isn't a matter of public concern, it's because the court has found that the employee has taken a private grievance public.)
If the employee's comments are on a matter of public concern, then the employer must demonstrate that the speech would “potentially interfere with or disrupt the government's activities, and can persuade the court that the potential disruptiveness” outweighs the employee's First Amendment rights.
For purposes of legal analysis, the judges who made up the 2nd Circuit panel assumed that Pappas' “speech” was on a matter of public concern. This allowed the judges to go straight to the question of whether Pappas' speech “potentially interfered with” or “disrupted” the NYPD's activities. They agreed with the district court judge; the Pickering balance, they ruled, leaned in favor of the employer.
Did it matter that Pappas conducted these activities off-duty? No, said the court, the potential interference and disruption effects on the employer were the same.
What about the fact that Pappas mailed the materials anonymously? The court distinguished Pappas' mailings from a diary or confidential conversation with close friends. “Had [his views] become known accidentally, or through a breach of confidence, that case would present different considerations. We do not speculate how such a case would be decided. But those are not the facts we deal with here…. Although Pappas tried to conceal his identity as speaker, he took the risk that the effort would fail.” (Emphasis added.)
Although Pappas was a sworn officer, did it matter that he was assigned to NYPD's Management Information Services Division and had virtually no contact with the public? To answer that question, the court had to explain why Pappas was different from Ardith McPherson.
McPherson was an unsworn deputy constable in the Harris County (Texas) Constable's Office when an attempt was made to assassinate President Ronald Reagan. She didn't like Reagan, and commented to a co-worker, “If they go after him again, I hope they get him.”
In Rankin v. McPherson, 483 U.S. 378 (1987), the U.S. Supreme Court held that McPherson's speech didn't interfere with or disrupt the Constable Office's activities because McPherson's statement was not a criminal threat and because her status as a clerk required no public contact. The court ruled that McPherson's statement was unlikely to impair “discipline by superiors, or harmony among co-workers, [cause] a detrimental impact on close working relationships for which personal confidence or loyalty are necessary, or impede the performance of [McPherson's] duties or interfere with the regular operation of the enterprise.”
As for Pappas, the court found that his status as a sworn officer outweighed his lack of contact with the public: “If the press became aware … of his dissemination of racist diatribes, it would report that this was done by a police officer — not a person … work[ing] on Police Department computers.” The court also noted that, while McPherson was overheard speaking privately to a co-worker, “Pappas disseminated his diatribes publicly,” and finally said that, while McPherson was making a very ill-conceived and ill-phrased political statement, Pappas was “venting his personal racial bias.”
Did Pappas' speech tilt the Pickering scale in favor of the employer's interests in acting in response to the “disruptiveness” and “potential interference” of Pappas' speech? Absolutely, said the court:
“An ordinary police officer's distribution of these bigoted hate-filled materials reinforces [the] perception [that ordinary police officers are biased], and thus harms the effectiveness of the Police Department. Further, for police officers of one race to express hatred and scorn for members of another race obviously fans anger, dissension and racial tensions among officers of different races and thus inflicts harm of a second kind on the Department's performance of its mission.” (Emphasis added.)
As to the burden of proof on NYPD to show evidence of the disruptiveness and interference of Pappas' speech, a “governmental employer's right to discharge an employee by reason of his speech in matters of public importance does not depend on the employer's having suffered actual harm resulting from the speech. The employee's speech must be of such nature that the employer reasonably believes that it is likely to interfere with the performance of the employer's mission.”
Contrast what happened in Pappas with this case. Late last year, the 8th Circuit Court of Appeals handed down a decision in another public-employee free-speech case, Washington v. Irwin, No. 00-3828 (Nov. 5, 2001.)
Joseph Washington was assistant chief and a 25-year veteran of the Normandy Fire Protection District in St. Louis County, Mo. On March 26, 1999, he appeared on a radio talk show as a “senior advisor” to an organization called FLAME, the Firefighter's League for the Advancement of Minority Employees, in support of a candidate for a position on the Fire District's Board of Directors. (The 8th Circuit judges noted that the district had no rules prohibiting such activities.) During the interview, Washington noted concerns with fire department response and fire department membership:
“To highlight [his] concerns, Washington described an incident in which an unidentified white firefighter refused to follow standard operating guidelines in fighting a fire because he was unwilling to ‘climb over fences in Pinelawn through debris, trash, garbage and whatever else to get to a back door to push (sic) a fire out and save someone's home.’ Washington also opined that ‘You have a better chance of getting on at Normandy Fire Protection District's fire force if you stay in St. Charles County and you are white than you would if you stayed in a community and you were a black person and paid taxes. It is just a fact of life.’”
Immediately after the radio show, IAFF Local 2665 shop steward John Irwin filed a complaint with the fire district grievance committee, alleging that Washington's remarks “created a ‘hostile environment’ for the District's white employees.” The chief of the district denied the grievance as without merit, stating that Washington's comments were expressions of his personal opinions during a “political” interview.
The fire district board held its own hearing on the grievance, without Washington. The board met three days later in closed session with Washington. On a 3-2 vote, the board demoted Washington from assistant chief to private. Washington left on sick leave, and after disagreement on documentation of his medical status, the board fired Washington.
Washington sued, arguing that he was demoted and then fired for exercising his free-speech rights. The board of directors argued that, as elected officials, they had “qualified immunity” from suit, and asked the U.S. District Court judge to, in effect, let them out of the lawsuit.
The judge denied their motion, so the board appealed, conceding that although Washington's speech was on a matter of public concern, his speech was so disruptive that “reasonable public officials would not have concluded that the … action taken violated [his] rights under the First Amendment.”
With the defendants conceding that Washington's speech met the Pickering public concern test, the court went right to the defendants' Pickering disruptiveness/potential interference defense. Did it matter that the fire chief had dismissed the Local 2665 grievance in determining the potential for disruption? Absolutely.
“The directors contend that no showing of actual disruption is necessary, pointing to our statement that the potential for disruption is accorded particular weight ‘[w]hen lives may be at stake in a fire [and] an ésprit de corps is essential to the success of the joint endeavor.’ [Quoted by the court from another classic fire service free-speech case, Janusaitis v. Middlebury Volunteer Fire Department, 607 F2d 17, 26 (2nd Circuit, 1979).] True enough, but we went on … to point out that the fire chief in that case reasonably believed that the speech in question had led or would lead to disruption in the department, a showing that is absent in this case….” (Emphasis added.)
The court also noted that the defendants had not met the Pickering standard for potential disruption either, but it is clear from the court's opinion that the fire chief's reaction played a significant role in the court's Pickering assessment:“[I]n the absence of such a showing, Washington's speech may not be punished.”
Pappas and Washington were argued before panels of circuit court judges within months of each other. Why was Pappas' firing upheld on the strength of potential disruption to NYPD, and Washington's firing overturned?
Although police officers share the public safety mantle with firefighters, courts generally hold police to a higher standard of free-speech consequences than other public-safety workers.
In the absence of a (presumably constitutional) district or department rule limiting political commentary, the reaction of the fire chief to Washington's speech was critical. The chief's dismissal of the grievance put a very heavy burden on the board, which it couldn't meet in the absence of actual disruption.
The content of the speech had a different impact. My guess is that, had the 8th Circuit felt that a close analysis of Washington's speech was required, the court would have found it less like Pappas' rants and more like typical firehouse arguments that don't interfere with a department's ability to function.
Public-employee free-speech cases are very difficult to call. Based on Washington, Pappas, Pickering and other cases like them, here's my advice:
As a chief officer, when you hear about some particularly choice “free speech” on the part of one of your members, count to one hundred before acting. If you feel you must act, a suspension with pay is the best short-term solution until you can get some good legal advice.
You can be publicly criticized by any of your members, be they full-time, part-time or volunteer, for just about any of your official acts — and the more controversial, the more First Amendment protection the member has. The general legal theory is that the public's interest in how public dollars are spent and public safety decisions are made is very strong, and public employees are in a very good position to address those public interests.
Don't count on your town, city or fire district attorney to be a quick-draw First Amendment expert. First Amendment law is very complex and there are few easy answers. If you guess wrong, you could be looking at a very uncomfortable rehiring or reinstatement, a very large damage award, or a personal-liability situation.
John Rukavina is director of public safety for Wake County, N.C., and holds a law degree from the University of Minnesota School of Law. He was a 1993Fellow at Harvard University's Kennedy School of Government and is a graduate of the National Fire Academy's Executive Fire Officer Program. He has taught for the National Fire Academy, at ICHIEFS conferences and for the Institutes of Government at the universities of North Carolina and Georgia.