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Public employee?s right to free speech yields to employer?s interest

By Harvey Randall, Esq.

Public employee?s right to free speech yields to employer?s interest
Carlos Blackman v New York City Transit Authority, CA, 2^nd Circuit, 491 F.3d 95

Carlos Blackman was fired after he commented that he thought two Transit Authority supervisors who had recently been murdered ?deserved what they got for getting [a Transit Authority employee] fired.?

United States District Court for the Eastern District of New York, granting the Transit Authority?s motion for summary and Blackman appealed.

The Circuit Court said that insofar as free speech by public workers is concerned, it has ?long recognized that ?the First Amendment protects the eloquent and insolent alike.?? citing Sheppard v. Beerman, 94 F.3d 823.

However, said the court, ?It is equally well-established that the First Amendment rights of an employee are not unlimited? as ?the Government as an employer, and hence as a consumer of labor, must retain some freedom to dismiss employees who do not meet the reasonable requirements of their jobs.?

As to these competing individual and governmental interests, courts balance the ?interests of the [employee], as a citizen, in commenting upon 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.?

Blackman argued that his speech was on matters of public concern and thus his termination violated his First Amendment rights.

The Circuit Court did not decide whether Blackman?s statements did or did not address matters of a public concern. Rather, said the court, assuming arguendo that Blackman?s comments did implicate a matter of public concern, ?we find that, at the balancing stage, the government?s interests plainly outweigh those of Blackman.?

Citing Pickering v. Bd. of Education, 391 U.S. 563, the court concluded that:

?It is clear . . . that a government official may, in certain circumstances, fire an employee for speaking ? even on a matter of public concern ? where that speech has the potential to disrupt the work environment.?

Further, said the court, the Second Circuit has recognized that ?the closer the employee?s speech reflects on matters of public concern, the greater must be the employer?s showing that the speech is likely to be disruptive before it may be punished,? citing Jeffries v. Harleston, 52 F.3d 9.

In the words of the court:

For, assuming arguendo that Blackman?s comments did implicate a matter of public concern, we find that, at the balancing stage, the government?s interests plainly outweigh those of Blackman. ?It is clear . . . that a government official may, in certain circumstances, fire an employee for speaking ? even on a matter of public concern ? where that speech has the potential to disrupt the work environment.?

The Second Circuit said that this case is the converse of Jeffries. Blackman?s comments at most only minimally touched on matters of public concern. Accordingly, this means that the government?s burden, at the Pickering balancing stage, is at its lowest.

In this instance, said the court, the Authority?s interest in firing Blackman is substantial, even assuming that Blackman?s statements may have addressed matters of public concern. Accordingly, the Pickering balancing test is weighted towards the Authority and the Circuit Court sustained the Authority?s dismissing Blackman from his position.

Full post as published by New York Public Personnel Law on April 07, 2008 (boomark / email).