Robert Charles REULAND, Plaintiff-Appellee, v. Charles J. HYNES, individually and in his capacity as District Attorney for the County of Kings, New York, Defendant-Appellant.
Docket No. 04-5521-cv.
United States Court of Appeals, Second Circuit.
Argued: October 25, 2005. Decided: August 21, 2006.
460 F.3d 409
Before WINTER, POOLER, and SOTOMAYOR, Circuit Judges.
Jane Bilus Gould, Lovett & Gould, LLP, (Brita Nicaj, on the brief) White Plains, NY, for Plaintiff-Appellee.
POOLER, Circuit Judge.
On August 21, 2001, appellee Robert Charles Reuland filed suit against appellant Charles J. Hynes under
Both Reuland and Hynes brought motions pursuant to
We agree with the district court and hold that the speaker‘s motive is not dispositive in determining whether speech is on a matter of public concern and that Reuland‘s statement is a matter of public concern. We also hold that Hynes has waived thе issue of disruption by agreeing not to include it in the jury charge. Finally, we hold that Hynes cannot benefit from qualified immunity because it would not have been objectively reasonable for him to believe the speech was unprotected and the jury found that he acted with improper retaliatory motive.
Reuland began working for the Brooklyn District Attorney‘s office in January 1997. He initially worked in the Grand Jury Bureau, and, after about three weeks, was promoted to the Red Zone, a general trial division. After about a year-and-a-half, he was promoted to Senior Assistant District Attorney.
In May 2000, Reuland signed a contract with Random House for the publication of two books, one of which was Hollowpoint, a fictionalized account of a Brooklyn District Attorney that Reuland had already essentially completed. Around the same time, Reuland sought promotion to the Homicide Bureau. He met with the District Attorney, Charles Hynes, to discuss this possibility on May 31, 2000. They discussed Reuland‘s book, which Reuland assured Hynes contained no negative information about the office. Shortly after this conversation, on June 5, 2000, Reuland was promoted to the Homicide Bureau.
Hollowpoint was published on March 27, 2001. A couple of months before, in early 2001, Reuland was interviewed in his Homicide Bureau office by a reporter for New York magazine for an article about young lawyers in New York. The article was published in the February 26, 2001, issue of the magazine, which became available prior to that date, and discussed Reuland‘s upcoming book. The article also quoted Reuland as saying, “Brooklyn is the best place to be a homicide prosecutor” because “[w]e‘ve got more dead bodies per square inch than anyplace else.” Cameron Stracher, Raising the Bar, N.Y. Mag., Feb. 26, 2001, at 31.
On February 22, 2001, after the article was published, Reuland met with First Assistant District Attorney Amy Feinstein, who told him that prominent politicians were outraged over his description of Broоklyn in the article.1 Reuland explained that he did not mean the statement to be literally true and was merely trying to explain why he enjoyed his job. He offered to write a letter to the editor explaining his remark. Feinstein and Assistant District Attorney Barry Schreiber edited Reuland‘s draft letter, and Hynes approved it. The letter explained that while the quote was correct:
[T]his was not intended to be, nor is it, literally true. In fact Brooklyn‘s murder rate has declined more than 66 percent during the past decade. Even with the remarkable reduction, the loss of life remains high and still keeps a homicide prosecutor busy—the point of my hyperbolic remark.
The letter was published in the April 2, 2001, issue. Letters, N.Y. Mag., Apr. 2, 2001, at 8.
On March 9, 2001, Reuland met with Hynes, who told him that his remarks were hurtful because, as District Attorney, Hynes had actually reduced the crime rate. Reuland says he explained that from his perspective, working directly with crime victims, there was still a great deal of work to be done and that he loved working as a prosecutor in Brooklyn in part because he felt he could make a difference. Hynes was not satisfied with this explanation and accused Reuland of lying to him and seeking the promotion to the Homicide Bureau simply to sell books. Hynes told Reuland he could either accept transfer to the Orange Zone, which would constitute a demotion back to a trial bureau, or quit. Ultimately, Reuland accepted the demotion.
Reuland did not receive positive reviews of his performance while in the Orange Zone. On July 16, 2001, Reuland wrote to Feinstein to request transfer back to the Homicide Bureau. Feinstein denied this request, and, the next day, told Reuland she expected his resignation by the end of the day. Reuland sent her his resignation.
A jury trial was held, at which Hynes testified that he met with Reuland after the New York magazine statement was published because he wanted to know why Reuland would say something that was not supported by statistics. Hynes also testified that he decided to demote Reuland during this meeting because he believed Reuland had lied to him about his reasons for seeking a transfer to the Homicide Bureau. Hynes did not express any concern that, because Reuland‘s statement to New York magazine had been untrue, Reuland‘s credibility would be destroyed and he would no longer be able to functiоn effectively as a prosecutor, as Hynes now contends.
After the conclusion of testimony, Judge Gleeson held a conference with the parties to go over the verdict form and jury charge. At this conference, defense counsel suggested the jury be asked if Hynes reasonably believed Reuland‘s false statement to New York magazine would interfere with their working relationship, a fact that could then be weighed by the court in determining the Pickering balance. See Pickering v. Bd. of Ed., 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). The district court found that the evidence presented went only to whether Reuland had lied to Hynes about his reasons for seeking a promotion to the Homicide Bureau, not whether he had lied in general, and suggested this was “not a Pickering question, it‘s a causation question.” Defense counsel agreed and did not object to the district court‘s failure to ask any questions related to disruption.
The jury found that Reuland‘s statement in New York magazine was a motivating factor in Hynes‘s decision to demote him, and that, absent this motivation, Reuland would not have been demoted anyway, because Hynes believed Reuland had lied to him. However, they found that the statement was not a motivating factor in Reuland‘s termination. The jury also found that, in making the statement, Reuland was not motivated by a desire to address a matter of public concern. On the issue of damages, the jury awarded $30,000 for Reuland‘s demotion and declined to award punitive damages.
Both Reuland and Hynes sought entry of judgment in their favor based on the jury‘s findings of fact. Judge Gleeson held that the jury‘s finding regarding Reuland‘s motive was not dispositive in determining whether that speech addressed a matter of public concern and concluded that the crime rate in Brooklyn is inherently a matter of public concern. See Reuland v. Hynes, 01-cv-5661, 2004 WL 2098664, at *2-7 (E.D.N.Y. Sept.17, 2004). He further held that the jury‘s finding regarding Hynes‘s motivation precluded Hynes from showing that the reason for the demotion was disruption, and from demonstrating he was entitled to qualified immunity. Id. at *8-9. Therefore, he entered judgment in favor of Rеuland in the amount of $30,000. Id. at *9.
DISCUSSION
I. Protection of Hyperbolic Speech under the First Amendment
We note, as an initial matter, that the fact that Reuland‘s statement was not literally true does not automatically deprive it of First Amendment protection.2 False speech, as well as hyperbole, is still entitled to First Amendment protection, as long as it is not made with knowledge or reckless disregard of its falsity. See N.Y. Times Co. v. Sullivan, 376 U.S. 254, 271, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) (“The constitutional protection does not turn upon the truth, popularity, or social utility of the ideas and beliefs which are offered. . . . To persuade others to his own point of view, the pleader, as we know, at times, resorts to exaggeration.” (internal quotations and citations omitted)); see also Hustler Magazine v. Falwell, 485 U.S. 46, 56-57, 108 S.Ct. 876, 99 L.Ed.2d 41 (1988) (finding parody that was not reasonably believable was protected by the First Amendment). This has been a longstanding principle of First Amendment law because “erroneous statement is inevitable in free debate, and . . . it must be protected if the freedoms of expression are to have the ‘breathing space’ that they ‘need to survive.‘” Sullivan, 376 U.S. at 271-72 (citations omitted).
The same First Amendment protection for false speech applies even in the context of public employee speech, where the government has somewhat greater latitude. Pickering, 391 U.S. at 574 (“[A]bsent proof of false statements knowingly or recklessly made by him, a [public employee]‘s exercise of his right to speak on issues of public importance may not furnish the basis for his dismissal. . . .“). In Pickering, one of the foundational Supreme Court cases in this area of law, the Court found that some of the statements at issue were false, but nevertheless accorded those statements constitutional protection, concluding that the employer‘s interest in preventing the speech did not outweigh the employee‘s interest in free speech. Id. at 572-73.
Because Reuland‘s statement was, as all parties concede, hyperbole, to demonstrate that it is not entitled to First Amendment protection Hynes would have to show that the statement (1) would reasonably have been perceived as an assertion of fact, (2) was false, and (3) was made with knowledge or reckless disregard of its falsity.3 Hustler, 485 U.S. at 56-57. He has not done so. Despite the dissent‘s assumption to the contrary, there is nothing in the record that would even show Reuland‘s statement was in fact false, let alone that he made it with knowledge or reckless disregard of its falsity.4 Indeed, in 2000 and 2001, around the time Reuland made his statement, Brooklyn had more homicides than any other borough of New York City as well as more violent crime per 100,000 people than any other borough. See New York State Division of Criminal Justice Services, 2000-2001 Crime and Justice Annual Report, Sec. 1, Part 1, available at http://criminaljustice.state.ny.us/crimnet/ojsa/cja_00_01/contents.htm. Therefore, we cannot conclude that Reuland‘s statement is deprived of First Amendment protection simply because it may not have been entirely accurate, and thus we continue the analysis under the same rubric as other public employee speech.
“For over 30 years the Supreme Court has consistently held that while the government enjoys significantly greater latitude when it acts in its capacity as employer than when it acts as sovereign, the First Amendment nonetheless prohibits it from punishing its еmployees in retaliation for the content of their protected speech.” Locurto v. Safir, 264 F.3d 154, 166 (2d Cir.2001). To determine whether an employee‘s speech rights have been violated by an adverse employment action, we first apply a two-part test.5 See Melzer v. Bd. of Ed., 336 F.3d 185, 193 (2d Cir.2003). First, the court determines, as a matter of law, whether the speech relates to a matter of public concern. Id. If so, the adverse action nevertheless does not violate the employee‘s rights “if the employee‘s speech is reasonably likely to disrupt the effective functioning of the office, and the employee is fired to prevent this disruption.” Sheppard v. Beerman, 317 F.3d 351, 355 (2d Cir.2003) (citing Jeffries v. Harleston, 52 F.3d 9, 12-13 (2d Cir.1995)). To prevail on this second step, the government must show, under the Pickering balancing test, that the employee‘s interest in free speech is outweighed by the employer‘s interest in avoiding disruption. See Melzer, 336 F.3d at 193.
A third aspect of the retaliation inquiry deals with causation. Initially, to make out a prima facie case, the employee must show that the speech was a substantial or motivating factor in the adverse action. Sheppard, 317 F.3d at 355. The burden then shifts to the government to show that “it would have undertaken the same adverse employment action even absent the protected speech.” Melzer, 336 F.3d at 193. Finally, even if the government prevails in the Pickering balance, “the employee may still carry the day if he can show that the employer‘s motivation for the discipline was retaliation for the speech itself, rather than for any resulting disruption.”6 Id.
III. Public concern
We first address whether Reuland‘s statement to New York magazine constituted a matter of public concern.7 Hynes contends that because the jury found Reuland was not motivated by a desire to address a matter of public concern, his speech cannot have been a matter of public concern. We disagree. We hold that the speaker‘s motive, while one factor that may be considered, is not dispositive as to whether his speech addressed a matter of public concern.
Whether Reuland‘s speech is a matter of public concern is important because “when a public employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest, absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision. . . .” Connick v. Myers, 461 U.S. 138, 147, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983) (citation omitted). “Speech by a public employee is on a matter of public concern if it relates ‘to any matter of political, social, or other concern to the community.‘” Johnson v. Ganim, 342 F.3d 105, 112 (2d Cir.2003) (quoting Connick, 461 U.S. at 146). “Whether an employee‘s speech addresses a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the whole record.” Connick, 461 U.S. at 147-48.
Similarly, in United States v. National Treasury Employees Union [hereinafter NTEU], the Supreme Court found the speech at issue to be a matter of public concern because “the content of the respondents’ messages had nothing to do with their jobs and does not even arguably have any adverse impact on the efficiency of the office in which they work. They do not address audiences composed of co-workers or supervisors; instead, they write or speak for segments of the general public.” NTEU, 513 U.S. 454, 465, 115 S.Ct. 1003, 130 L.Ed.2d 964 (1995). Yet, at least part of the motivation for the speech at issue in NTEU was to receive financial compensation because the case challenged not a restriction on the speech itself, but on public employees receiving honoraria for their speech. Id. Thus, although Reuland‘s statement does not fit neatly into the citizen-employee distinction discussed in Connick and NTEU, we cannot conclude the fact that his motivation to sell books means his speech does not address a matter of public concern.
Our previous cases suggesting that the speaker‘s motive might indicate that the speech is not on a matter of public concern have focused primarily on private motives related to employment grievances. See, e.g., Ezekwo v. NYC Health & Hosps. Corp., 940 F.2d 775, 781 (2d Cir.1991) (“Ezekwo was not on a mission to protect the public welfare. Rather, her primary aim was to protect her own reputation and individual development as a doctor.“); White Plains Towing Corp. v. Patterson, 991 F.2d 1049, 1060 (2d Cir.1993) (“Although [plaintiff‘s] First Amendment interest in filing his short-lived personnel complaint would be weak if, as the trial record strongly suggests, he took that action solely to obtain additional towing referrals, the trial court did not err in ruling the personnel complaint did at least minimally touch upon a matter of public concern.“); Blum v. Schlegel, 18 F.3d 1005, 1012 (2d Cir. 1994) (noting that private motives such as “facing termination for personal consumption of marijuana” or “trying to evade or discredit a drug testing program” might mean that employee speech advocating the legalization of marijuana was not protected). In Ezekwo, the only one of these cases to conclude the speech at issue was not a matter of public concern, we relied not only on the motive of thе speaker, but on the content of the speech, finding that both were related to personal grievances. Id. at 781.
Other circuits that hаve considered the role of motive on the question of public concern have almost uniformly agreed with our reading of Connick and found that motive is not dispositive. See Tripp v. Cole, 425 F.3d 5, 11 (1st Cir.2005); Markos v. City of Atlanta, 364 F.3d 567, 572-73 (5th Cir.2004); Anderer v. Jones, 385 F.3d 1043, 1053 (7th Cir.2004); Alpha Energy Savers, Inc. v. Hansen, 381 F.3d 917, 925 (9th Cir.2004); Azzaro v. County of Allegheny, 110 F.3d 968, 978 (3d Cir.1997); Chappel v. Montgomery County Fire Prot. Dist. No. 1, 131 F.3d 564, 576 (6th Cir.1997); Morris v. Crow, 117 F.3d 449, 457 (11th Cir.1997); Barnard v. Jackson County, 43 F.3d 1218, 1226 (8th Cir.1995). Only the Tenth Circuit has potentially treated motive as dispositive, although it has not explicitly so held. See, e.g., Schalk v. Gallemore, 906 F.2d 491 (10th Cir.1990).
We join the majority of circuits in finding that the speaker‘s motive is not dispositive as to whether an employee‘s speech relates to a matter of public concern. Therefore, the jury‘s finding that Reuland was not motivated by a desire to address a matter of public concern does not resolve the issue. Under Connick, we must consider the “content, form, and context of a given statement, as revealed by the whole record.” Johnson, 342 F.3d at 112 (quoting Connick, 461 U.S. at 147-48).
Reuland‘s statement addressed the crime rate in Brooklyn. We have previously held that crime rates are inherently a matter of public concern. See Morris v. Lindau, 196 F.3d 102, 111 (2d Cir.1999) (“[S]peech on crime rates, police staffing, equipment shortages and related budgetary matters quite plainly involve matters of public concern.“). Certainly crime is a “matter of political, social, or other concern to the community.” Johnson, 342 F.3d at 112. In contrast to previous cases in which we considered the speaker‘s motive significant, Reuland‘s statement did not relate to employment policies or other internal workplace grievances. In addition, the statement was made in an interview with a magazine with public circulation and not simply to co-workers. We therefore have little difficulty concluding that Reuland‘s statement to New York magazine addressed a matter of public concern.
IV. Pickering Balancing
Hynes argues on appeal that he demoted Reuland because Reuland‘s hyperbolic statement made him untrustworthy, a quality that would undermine his effectiveness as a prosecutor. Hynes further contends that this disruption of the effectiveness of the district attorney‘s office outweighed Reuland‘s interest in the speech under the Pickering balance. Although this argument is not without merit, we hold that Hynes has waived the issue of the disruption by agreeing not to submit the underlying facts of his disruption claim to the jury.
More importantly, Hynes explicitly waived the issue of the Pickering balance at the jury charge conference by agreeing that the jury need not decide whether the adverse employment actions were motivated by the potential for disruption, rather than retaliation. At that conference, Hynes‘s counsel suggested that the jury be asked: “did the Defendant Hynes reasonably believe that the plaintiffs false statement to the New York Magazine did or would likely interfere with the good working relationship between the plaintiff and the dеfendant.” She suggested that this was part of the Pickering balancing test. Alternatively, the district court proposed to ask the jury whether Hynes demoted Reuland because he believed Reuland lied to him. Hynes‘s counsel attempted to broaden this to simply “he had lied period,” but the court responded: “That is not what the evidence is. . . . The whole issue whether he lied to him. This really isn‘t . . . a Pickering question, it‘s a causation question. It is a way of focusing more precisely on your version of what caused the demotion.” Rather than persist in her Pickering argument, Hynes‘s counsel replied, “I think that is right. I think what Your Honor has proposed will work.” Generally, we need not consider a claim on appeal where the party advancing it consented not to submit it to the jury below. See Coffey v. Dobbs Int‘l Servs., Inc., 170 F.3d 323, 325 n. 2 (2d Cir.1999); Getty Petroleum Corp. v. Bartco Petroleum Corp., 858 F.2d 103, 106-07 (2d Cir.1988). By failing to make clear to the district court that he also wanted to raise the issue of whether Reuland‘s reputation for truthfulness would damage his work as a district attorney and instead agreeing to the district cоurt‘s decision not to include any questions about disruption in the jury charge, Hynes affirmatively waived the issue of the Pickering balance.
In addition, Hynes‘s failure to submit the Pickering balance to the jury has left factual questions unresolved that would make it impossible for us to decide this issue. The jury should have resolved whether Hynes was in fact motivated by a desire to avoid disruption, rather than retaliation, and whether his concern about disruption was reasonable. See Gorman-Bakos v. Cornell Coop. Extension, 252 F.3d 545, 557-58 (2d Cir.2001) (finding that factual disputes underlying Pickering balance must be submitted to the jury). Therefore, because it was raised too late for these factual disputes to be submitted to the jury, Hynes‘s halfhearted attempt to revive this issue after the jury verdict in a footnote to his motion for judgment as a matter of law cannot alter our conclusion that it was waived. See Reuland, 2004 WL 2098664, at *6 n. 5.
V. Qualified Immunity
“Under the doctrine of qualified immunity, a government official performing discretionary functions is shielded from liability for civil damages if his conduct did not violate clearly established rights or if it would have been objectively reasonable for the official to believe his conduct did not violate plaintiff‘s rights.” Mandell v. County of Suffolk, 316 F.3d 368, 385 (2d Cir.2003). However, where, as here, “specific intent is actually an element of the plaintiff‘s claim as defined by clearly established law, it can never be objectively reasonable for a government official to act with the intent that is prohibited by law.” Locurto, 264 F.3d at 169. Because previous cases have recognized and defined the First Amendment right of public employees to be free from retaliation for speech on matters of public concern with reasonable clarity, Hynes would be entitled to qualified immunity only if it was objectively reasonable for him to believe that he could demote an assistant district attorney for making a hyperbolic statement regarding the crime rate without violating that right. See Anderson v. Recore, 317 F.3d 194, 197 (2d Cir.2003).
Our conclusion that the speaker‘s motive is not dispositive in determining whether speech addresses a matter of public concern rests primarily on Connick, another well-established Supreme Court precedent. See supra Part III; see also, Connick, 461 U.S. at 147-50. Although it would have been reasonable for Hynes to believe that Reuland‘s motive would be relevant in determining whether his statement is a matter of public concern, this is not enough. Connick‘s command to consider the “content, form, and context” of the speech, as well as the Supreme Court‘s application of that test, would have suggested to any objectively reasonable government official that the spеaker‘s motive is not dispositive. See id. at 147-48. NTEU also suggested that a financial motive does not mean speech is not a matter of public concern. See NTEU, 513 U.S. at 465. Finally, the fact that nearly every circuit to consider the issue has found motive is not dispositive should have alerted Hynes that it would not be reasonable to assume otherwise. See Tripp, 425 F.3d at 11; Markos, 364 F.3d at 572-73; Anderer, 385 F.3d at 1053; Alpha Energy, 381 F.3d at 925; Chappel, 131 F.3d at 576; Azzaro, 110 F.3d at 978; Morris, 117 F.3d at 457; Barnard, 43 F.3d at 1226. Further, we have previously held that crime rates are a matter of public concern. See Morris, 196 F.3d at 111. Thus, we conclude it would not have been objectively reasonable for Hynes to believe that merely because Reuland was motivated by a desire to sell books that his statement was not a matter of public concern.
Next, we consider whether it would have been objectively reasonable for Hynes to believe that he could prevail on the Pickering balance. Because even if the disruption outweighed the employee‘s speech interest, “the employee may still carry the day if he сan show that the employer‘s motivation for the discipline was retaliation for the speech itself, rather than for any resulting disruption,” Hynes would be entitled to qualified immunity on this basis only if a finder of fact determined that he had no retaliatory motive. Hynes has waived this issue by not submitting it to the jury. See supra Part IV. Therefore he cannot now claim qualified immunity on this basis.
Because it would not have been objectively reasonable for Hynes to believe he could demote Reuland in retaliation for his hyperbolic statement to New York magazine, and he did not request that the jury decide if he was motivated by disruption rather than retaliation, Hynes is not entitled to qualified immunity.
CONCLUSION
Accordingly, for the reasons set forth above, we affirm the district court‘s entry of judgment in favor of Reuland.
Judge WINTER dissents in a separate opinion.
WINTER, Circuit Judge, dissenting:
I respectfully dissent.
I. The Facts
In the course of promoting a novel he had written, the plaintiff, Reuland, gave an interview to New York magazine. A reader of the resultant article would have learned that Reuland was a homicide prosеcutor in Brooklyn. Reuland described Brooklyn as “the best place” to hold such a job because it had “more dead bodies per square inch than anyplace else.” Even though the statement was indeed hyperbolic — no reasonable person would believe that homicide rates are compiled on a “dead bodies per square inch” basis — a reasonable reader would infer that Reuland as a prosecutor had personal knowledge of crime rates in Brooklyn and elsewhere and that Brooklyn had a higher homicide rate by meaningful statistical measures than other comparable places. It was so understood by a political leader and Reuland‘s boss, Hynes, who were upset because it was untrue. As a result, Reuland was demoted.
My colleagues assert that there is nothing in the record to show that Reuland‘s statement was false or that he knew it to be, or recklessly disregarded whether it wаs, false.1 The following is the state of the record. Reuland has never claimed that there was a factual basis for the statement “more . . . than anyplace else.” When Reuland was challenged by Hynes to provide a statistical basis for the statement2 and when he testified on his own behalf at trial,3 Reuland would say only that the statement was “hyperbole” and that it was not intended to be true. Reuland‘s letter to the magazine conceded that the statement was intended to mean only that “the loss of life remains high,” a clear admission that the “more . . . than anyplace else” claim was false.4 Hynes, on the other hand, testified at trial that Brooklyn did not have the highest homicide rate “by any statistics” of which he was aware.5
II. The Law
The legal question then is whether a public employee‘s statement, (i) that is about a subject specifically related to his employment responsibilities, (ii) that is false, (iii) for which the employee had no basis in fact, and (iv) that was made for reasons of personal profit, is protected by the First Amendment.
Reuland‘s sole claim in this regard is that his statement was protected because it was “hyperbole.” I have no quarrel with the proposition that a protected statement does not lose protection simply because it is made in exaggerated form that will be understood by reasonable listeners as such. But it is also true that unprotected speech does not gain First Amendment protection by being stated in exaggerated form. Hyperbole is not a genre of speech unto itself; instead it is a rhetorical style used in protected or unprotected speech. Hyperbole is “[e]xtravagant exaggeration that reprеsents something as much greater or less, better or worse, or more intense than it really is or depicts the impossible as actual.” Webster‘s Third New International Dictionary 1112 (unabridged ed.1981). As the Supreme Court has noted, protected speech cannot be deprived of protection because it is clothed in “mere[ ] rhetorical hyperbole, a lusty and imaginative expression of the [underlying protected speech].” Letter Carriers v. Austin, 418 U.S. 264, 286, 94 S.Ct. 2770, 41 L.Ed.2d 745 (1974). On the other hand, the rhetorical style alone cannot confer protection where it is “used in such a way as to convey a false representation of fact.” Id. In the present case, the core meaning conveyed by Reuland‘s statement was not protected whether stated plainly or in hyperbolic fashion.
To be accorded First Amendment protection, Reuland‘s statements had to address a matter of public concern. Cobb v. Pozzi, 363 F.3d 89, 102 (2d Cir.2004). As my colleagues state, crime rates are a matter of public concern, but it is precisely that aspect of Reuland‘s statement that was not just hyperbolic but false. Again, a reader would discount the “per square inch” homicide rate as an exaggeration but would believe that a core of truth existed in statistical measures known to Reuland. The words “more . . . than anyplace else” might possibly be discounted by a reader to mean “among the highest,” but they cannot be discounted further without being rendered either contrary to their obvious meaning or so meaningless as not to be addressed to matters of public concern. Reuland can hardly be allowed to prevail by claiming that “more . . . than anyplace else” cannot be read as a comparison to other locales or actually meant “less . . . than anyplace else.” Moreover, if no comparison was conveyed, the statement becomes meaningless—Brooklyn has “dеad bodies per square inch.” The issue of public concern and reckless falsity thus coincide.
The judgment here not only furthers no legitimate societal interests but also may have very negative consequences. At the least, it has the potential of wrongly protecting some public servants who misinform the public about the performance of public agencies, impair the performance of those agencies, and thereby betray the public trust. The effect in the case of a prosecutor‘s office can be particularly harmful because a dedication to accuracy in public statements and a resistance to self-aggrandizing temptations is important to the professionalism of such an office.
Existing law clearly reflects these considerations.6 A knowing or recklessly false statement of fact is not protected by the First Amendment. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 340, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). In Gertz, the Supreme Court stated that
there is no constitutional value in false statements of fact. Neither the intentional lie nor the careless error materially advances society‘s interest in ‘uninhibited, robust, and wide-open’ debate on public issues. New York Times Co. v. Sullivan, 376 U.S. at 270. They belong to that category of utterances which ‘are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.’ Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62 S.Ct. 766, 86 L.Ed. 1031 (1942).
Id. (addressing the issue in the context of a defamation case). See also Nike, Inc. v. Kasky, 539 U.S. 654, 664, 123 S.Ct. 2554, 156 L.Ed.2d 580 (2003) (Stevens, J., concurring); Illinois ex rel. Madigan v. Telemarketing Assocs., Inc., 538 U.S. 600, 612, 123 S.Ct. 1829, 155 L.Ed.2d 793 (2003); Hustler Magazine v. Falwell, 485 U.S. 46, 52 (1988); Pugel v. Bd. of Trs. of the Univ. of Illinois, 378 F.3d 659, 668 n. 9 (7th Cir.2004); Condit v. Dunne, 317 F.Supp.2d 344, 361 (S.D.N.Y. 2004). Reuland admitted at trial that he never intended the statement as truth and has never claimed to have had a factual basis for it.
Hustler Magazine v. Falwell, 485 U.S. 46, 108 S.Ct. 876, 99 L.Ed.2d 41 (1988), relied upon by my colleagues, is hardly authority to the contrary. That case involved a parody of an advertisement for Campari Liqueur that contained a photograph of the Reverend Jerry Falwell and a fictional interview with him, describing an alleged “drunken incestuous rendevous” between Falwell and his mother in an outhouse. Id. at 48. Notably, it contained a notice that this was an “ad parody—not to be taken seriously.” Id. Falwell sued for intentional infliction of emotional distress, libel, and invasion of privacy. Id. at 48-49. Because the jury had found that the ad “could not reasonably have been interpreted as stating actual facts” about Falwell, id. at 50, he could not show that Hustler had made a false statement of fact about him with the requisite malice and so could not recover. Id. at 57. In contrast to Hustler, there was no parody here;7 Reuland‘s statement was factual—Brooklyn has a murder rate higher than comparable areas by meaningful statistical measures—even if hyperbolic.8
I therefore dissent.