*1 PAPPAS, Plaintiff-Appellant, Thomas
Rudolph GIULIANI, Mayor City Safir,
of New York and Howard Com
missioner of Police York, of New Defendants-
Appellees.
Docket No. 00-9487.
United Appeals, States Court of
Second Circuit.
Argued: Nov. 2001. May
Decided *2 Ross, counsel), Glass, D. Marta
Bryan Defendants-Appellees. for LEVAL, SOTOMAYOR, Circuit Before McMAHON, Judge.* District Judges, and LEVAL, Judge. Circuit whether appeal question This raises the department may, with- municipal police violating guar- the First Amendment’s out speech, terminate a antee of freedom by officer reason of the officer’s anonymous bigoted racist dissemination Ap- and anti-semitic materials. anti-black Pappas brought this suit pellant Thomas § against officials under U.S.C. and the New York City of New York (N.Y.PD) Department alleging City Police unconstitutionally fired from that he was by police department employment exercising rights reason of his of free speech protected by the First Amendment. District Court for the The United States (Buchwald, District of New York Southern J.) motion for granted the defendants’ summary judgment. We affirm the dis- trict court.
Background Pappas employed by the New York (N.Y.PD) from Police until his termination on January At the time of his termi- August Dunn, T. Amicus Curiae Christopher nation, Depart- Pappas worked Union, New New York Civil Liberties Systems Management ment’s Information (Arthur brief), York, NY, Eisenberg on the (MISD), responsible Division which was Plaintiff-Appellant. computer systems. for maintenance of its Friess, Carroll, Rosemary Carroll & two occasions in 1996 and On least York, NY, for Plaintiff- New on the brief Mi- Pappas received letters from the Appellant. Auxiliary neóla Police (MAPD) Hess, soliciting D. charitable contributions Margaret King, for Michael enclosing reply envelopes for use Corporation City of New and Counsel of the (Edward Hart, York, York, NY, sending F.X. contributions. stuffed New * York, McMahon, sitting by designation. United of New Colleen The Honorable District States District Court for the Southern friends, and, racially big- terials to his after some eva- envelopes with offensive reply sion, anony- sending them materials returned admitted the materials oted printed The materials included mously. response the MAPD and other solicita- and anti-semitic conveying fliers anti-black tions. *3 fliers asserted white su- messages. The (cid:127) charged Pappas The NYPD with viola- people black and their premacy, ridiculed Departmental tion of a regulation. A dis- culture, against “Negro wolf warned ciplinary trial was held before Josefina ... American civilization with destroying Martinez, Deputy Assistant Commissioner murder,” rape, robbery, and and declaimed Pappas of Trials. asserted at the trial that control net- against “how the Jews the TV because, he had sent the materials “I was be in the why
works and should and I protesting, being was tired of shaken American and not the public hands of the money by down for these so-called charita- Jews.” organizations. ble And it was a form of materials, receipt of Upon these protest, just put stuff in an envelope back County Department Police then Nassau and back a protest.” send stuff form of investigation hope an undertook Pappas stipulated The NYPD and that the sender. It sent out a chari- identifying Pappas’s conduct and the in- subsequent mailing solicitation with coded return table vestigation subject had been the of news envelopes. again, response a envel- Once Times, reports media in the New York Fox returned, rac- ope was stuffed with similar news, News on Channel a ABC and County Police ist materials. Nassau Long Island television station. Department traced the source to P.O. Box Martinez a Commissioner issued 20- Mineóla, post 321 in New York—a office decision, Pappas page finding guilty of vio- registered box under the name “Thomas lating Departmental Regulation by dis- Pappas/The Populist Party for the Town of defamatory seminating through materials Hempstead.” County North The Nassau mails, recommending his dismissal mailing Police made another from the force. Police Commissioner with the same result. adopted Howard Safir the recommendation Upon ascertaining Pappas that Thomas Pappas. and dismissed officer, City police a New York was Pappas seeking then filed this action County Nassau Police notified relief, monetary injunctive claiming Department’s the New York Police violated First that his termination (IAB), re- Internal Affairs Bureau which rights. Amendment The district court peated investigative experiment, send- granted the defendant’s motion for sum- ing Pappas further charitable solicitation mary judgment dismissed action.1 mailings, again once with the result appeal This follows. Pappas reply envelopes returned similarly provocative materi- stuffed Discussion
als. 24, 1998, Pappas government employee suing March interro- Where a On by City police a New officer. of the First Amendment estab- gated York violation by Pappas sending at first admitted such ma- lishes that he was terminated reason NYPD’s could make out a First Amendment viola- 1. The district court decided that the Pap- agree proceedings did tion. Because we with the district administrative not bar issue, pas’s subsequent § Amendment we do 1983 suit under collateral court on the First questions preclusion. estoppel, but went on to not discuss the conclude employee’s con- an addresses “upon a matter of “Whether matter of concern must be deter- cern,” instructed Supreme Court has content, form, by the and context of at a mined task is “to arrive the court’s statement, as revealed given ... interests of the between the balance whole record.” Id. at 103 S.Ct. citizen, commenting on matters of our resolution of the 1684. Because State, as an the interest of the concern and test, Pickering balancing we assume with- efficiency of promoting employer, deciding Pappas’s mailings consti- out performs through its services public concern. tuted on a matter of Edu- Pickering v. Board employees.” 563, 568, cation, weighs Pickering’s balancing test *4 (1968). also Connick v. L.Ed.2d 811 See freely plaintiffs speaking the 138, 142, 461 103 S.Ct. Myers, U.S. of concern his mind on a matter (1983). the 75 708 Under balanc- L.Ed.2d perfor in the against the State’s interest test, employer may governmental the ing Pickering, functions. mance of its demonstrating that it the defeat claim 1731. our U.S. at Under speech that the would “reasonably believed doctrines, few values are Constitutional disrupt with or the potentially interfere carefully thoroughly protected more and activities, persuade and can government’s right speak than the citizen’s to his mind potential disruptiveness the court that the without on matters of concern inter outweigh to the First was sufficient Nonetheless, by government. the ference speech.” of that Heil v. Amendment value times, right right is not absolute. At (2d Cir.1998) Santoro, speech impor of free conflicts with other (internal omitted). citations values, prob governmental posing tant prevail. lem which interest should dispute There is no functioning govern effective of entities of his was terminated because seriously by its ment could be undermined been terminated were it would not have declarations of employees’ unrestrained speech. not for his The defendants contend reason, employ their views. For this Pappas’s anonymous sending of the sub right ee’s of free is sometimes may “fairly char bigoted materials not be of the effective ordinated to the interest constituting speech on a mat acterized as functioning governmental employer. Connick, ter of concern.” city’s police 1684. The First Amend The effectiveness of de- S.Ct. partment depends importantly with on the re- ment concerns itself less relat private spect community than and trust of the and on ing to an individual’s concerns speech relating perception community with to matters of concern; fairly, even-handedly, accordingly public employee enforces the law discipline Tyler, Why latitude to an em and without Tom R. greater has bias. See (1990) Obey con the Law ployee speech expressing People over expression (demonstrating legitima- how belief in the cerns. cannot “When any authority trust in law en- fairly relating cy legal be considered as to social, political, greater compliance matter of or other concern forcement leads law). community, government police department officials with If the treats to the wide, race, population any enjoy managing segment latitude in of the should offices, origin, national or sexual oversight by religion, gender, their without intrusive etc., preference, contempt, so that judiciary name of the First minority regard comes to particular Amendment.” Id. at pro- rather than police oppressor police department as im community tector, respect for law enforcement is mense. Such statements great also have a ability police to do eroded and the capacity to cause harm within the ranks of community impaired. in that its work the Police by promoting re minority will be less like- Members of the sentment, distrust and racial strife be crimes, ly report testimony to offer tween fellow In officers. these circum witnesses, rely police on the and to stances, an individual right officer’s make protection. their When express personal opinions yield must community, in that its members arrests public good. The restrictions of the that the arrests are a likely are to assume First Amendment do not require the New bias, well-founded, product of rather than York Police to continue protective law enforcement. And the de- employment of an officer whose dis partment’s ability per- to recruit and train semination of such racist messages so risks community dam- sonnel from will be Department’s to harm the performance of Cole, Equal No aged. See David Justice its mission. the words of Justice (1999) (describing the costs that Holmes, policeman “A may have a consti perception inequality disparate mind], right [speak tutional he but *5 enforcement; places on law treatment right police has no constitutional to abe engenders unwillingness distrust and to Mayor man.” New Bed McAuliffe of crime), cooperate encourages and Brandon 216, 220, ford, 156 Mass. 29 N.E. Garrett, Note, Standing While Black: (1892) (quoted at Lyons Profiling in Racial Distinguishing 1684). S.Ct. Cases, L.Rev. nn. Colum. Pappas argues that the (2000) foregoing con- (describing social science evi- apply siderations should not himto be- public perception dence that a identity cause he tried to conceal his as community cooperation undermines bias bigoted opinions. source of the compliance and He con- with law enforcement law), Chivers, being punished opinions, tends he is for his C.J. Alienation is a Part- Times, Officers, April N.Y. argument ner Black rather than his actions. The 3, 2001, Al; Flynn, Feeling Kevin Pappas the mark. misses was tried and Scorn on the Beat and Pressure From found to have violated Police Above, Times, N.Y. Dec. at Al regulations. important That fact is to our negative public percep- how (describing upholding Depart- of the lawfulness of the York, especially by tions of New Pappas ment’s actions. If had written his communities, minority has led to low mo- bigoted private diary, views in a or re- rale, and difficulty and recruitment re- family vealed them in confidence to his or minorities). tention, especially among friends, and had intimate become accidentally, or a through known breach of City police
For a New York officer to confidence, present that case would differ- trumpet bigoted disseminate leaflets not speculate ent considerations. We do Jews, messages expressing hostility to rid- But how such case would be decided. iculing attributing African Americans those are not the facts we deal with. disposition rape, to them a criminal Here, Pappas deliberately publi- murder, sought robbery, promote tends repeatedly cize his views. He sent leaflets among citizenry New York’s view pronounced aggressively provoca- opinions po- those are the of New York’s organizations engaged pub- capacity lice officers. The of such state- tive views admittedly lic He did so with damage ments to effectiveness solicitation. employees lower level when their public opinion. tion influencing the intention capacity to harm action statements do have took -Department appropriately employer’s performance of its mission. of his him not because against McEvoy implied any Rankin nor conduct in vio- Neither because of his opinions but thing. such Departmental regulations lation of —con- to harm the duct that risked Rankin, employee in the a clerical performance governmental of its Texas, office, County, Constable’s Harris Although Pappas tried to conceal mission. public, who had no contact with the speaker, he took the risk identity because, upon learning fired assassi fail. that the effort would she attempt Reagan, nation on President Judge arguments privately turn now to the and a coworker discussed their We dissenting in her Sotomayor advances mutual dislike of the President’s welfare cutbacks, added, opinion. they go “If after she hope they get
him
him.” Id. at
again,
380, 107
2891. The lower court
found that the statement was not
crimi
great impor-
attaches
Judge Sotomayor
threat,
hyperbolically
nal
rather a
but
fact that
did not occu-
tance to the
political opinion
framed statement of a
‘confidential,’
py “high
‘supervisory,’
level
concerning
policies. “Al
the President’s
De-
role”
the Police
‘policymaking’
job
deputy
though
plaintiffs]
title was
[the
Supreme
on the
partment.
She relies
constable,
only
this was the case
because
in Rankin v. McPher-
Court’s statement
office,
employees
all
re
Constable’s
son,
function,
job
deputy
were
con
(1987)
gardless
employ-
“an
that where
L.Ed.2d 315
*6
not a commissioned
confidential,
stables.
She was
or
.policymaking,
no
ee serves
officer,
uniform,
peace
did not wear a
was
role,
agen-
public
danger
contact
the
permit
not authorized to make arrests or
from that em-
cy’s
functioning
successful
380,
carry
gun.”
ted to
a
Id. at
minimal.” Id. at
ployee’s private speech is
omitted).
(internal
was
citations
She
390-91, 107
as well as our
typist
public.
a
and had no contact with the
Spencer, 124
McEvoy
observation
(2d Cir.1997)
There was “no indication that she would
that “the more
F.3d
any
... have
involvement with ...
ever
job
confidentiality,
employee’s
requires
the
activity
minimal law enforcement
en
contact,
the
policymaking,
public
great-
or
the
by
Id. at
gaged
the Constable’s office.”
firing
her for
er the state’s interest
392, 107
(in-
S.Ct. 2891.
employer.”
expression that offends her
omitted).
quotation
ternal
marks
“pertinent con-
The Court identified as
le-
assessing
employer’s
the case that ill-
siderations
the
undoubtedly
[in
While it is
an em-
high gitimate
disciplining
of a
considered
statements
the
high- ployee
speech]
have a
for
whether
statement
policy-making executive often
discipline by superiors or harmo-
employer’s
impairs
the
harming
er likelihood of
co-workers,
a detrimental
accomplishment
ny among
than similar
has
of its mission
clerk,
relationships for
impact
working
laborer
on close
by
statements made
file
are
janitorial
by
personal loyalty
it
means which
and confidence
employee,
or a
no
employees
necessary,
impedes
performance
are
follows that rank and file
speaker’s
interferes with the
incapable
employer’s effec-
duties or
harming
Id.
regular operation
enterprise.”
of the
speech,
govern-
or that
tiveness
their
at
Had the facts of this conformed to were not a but rather a civil- case officer any respects, Depart- Rankin’s of these we ian hired to work on the might computers, well reach the conclusion as ment’s his case would have same Rankin, the Rankin But Rankin certainly greater similarity and ca- Court. to level, only high policy- pacity impair did mean that of his racist remarks to making employees may by Department’s performance be removed of its mission sure, speech. Pappas reason of their To be the would be diminished. But is not a Supreme cop. fact employee. Court observed that bur- civilian He is a “[t]he if in uniform or at work computers ing harm made to work on assigned
that he was they that did not have a cop, either in does not mean any him less a not make does they harm capacity to assign- His substantial cause public perception. fact or subject change; to when the state- were made. Where and was ment furthermore assigned certainly to a factor to be have been are made is any time he could ments assessment, aware of his it press If became in the overall but a beat. considered diatribes, it would racist talismanic or determi- only a factor. No dissemination by police a offi- this was done to it. we report significance that native attaches What person by done a that it was entire cer—not in such cases is assess the must do work on Police employed to that the picture especially the likelihood — Furthermore, capac- as to the computers. harm function- employee’s speech will racial to cause ity Pappas’s statements employer. governmental Given ing among and police tension strife Pappas’s nature of statements and offi- fellow cers, whether it make no difference would capacity inflict serious very high their or to patrol, a beat assigned he was if it employer’s harm on the mission were computers. program came from discovered officer, Pappas anony- fact that acted point Sotomayor’s third Judge home, mously, at and on his own time does made from his Pappas’s were statements ultimate that the not alter the conclusion time, anonymously, home, on his own him entitled to dismiss Department was that he that did not reveal in a manner harm because of the Sotomayor Judge officer. was risked to inflict. that his statements Supreme observation cites the Court’s “[ejmployee speech which Connick Sotomayor’s point final is that the Judge employee’s own transpires entirely on the permitted not be Department should office, time, areas of the and in non-work because, the De- discharge Pappas absent into the Picker- different factors [brings] bring disciplinary partment’s decision calculus, to a different might lead ing would have known that charges, no one at 153 n. conclusion.” being dis- these offensive materials were in Connick S.Ct. 1684. That observation by police Judge officer. Sotoma- tributed employ- to an was made with reference that, upon learning yor argues essence policies and office complaint ee’s about violating its rules dis- undoubtedly true that It is procedures. materials, seminating bigoted racist policies made complaints about office swept have the matter Department should having no away persons from the office to rug hoping no one would ever under the would employment connection with the facts; if it chose instead to learn the to harm the generally capacity have little Pappas, only bring charges against has *8 Pappas’s It true that employer. is also resulting harm to its itself to blame for privately, bigotry made proclamations of reputation, may discharge Pappas and not , time, work, during off-duty away from argu- In our view this for his misconduct. undermining had a lesser likelihood seriously misguided policy as a ment is if than he had Department’s effectiveness matter, furthermore on premised passed in uniform to citi- out his leaflets misunderstanding of the law. New York or to his zens the streets of First, we policy implications, as to the workplace. at the
fellow officers suggestion for the sympathy have little De- proper for the Police statements that the course say
But 'to
that his
that one of
partment, upon learning
its
likelihood of caus-
greater
would have had
disseminating
officers was
offensive racial-
potentially
would
interfere with
materials,
ly bigoted
was to hush the mat-
or disrupt
government’s activities”);
up
hope
keep
ter
to
it secret. Had the
Harleston,
(2d
Jeffries
Department
taken this course and the Cir.1995) (rejecting any actual harm re-
known,
eventually
truth had
become
quirement,
stating
proper
Department
harm to the
would have been
inquiry
“potential
is into
disruptiveness”).
greater
Department
all the
because the
employer’s
The
discharging the
perceived
tolerating Pappas’s
would be
as
employee is demonstrated if
employ-
being
passive complicity.
acts and
ee’s
significant
statements create a
risk of
may
Department
While it
be true that the
harm, regardless whether that harm actu-
could have
adverse
it
publicity
avoided
had
ally materializes.
up Pappas’s
covered
misconduct rather
him,
proceeding against
conclusion,
than
that does not
possible
is indeed
to
do,
right
thing
make it the
and the
imagine changed facts that would make
Department
lose
right,
did
as
against
the case
Pappas still stronger.
Sotomayor
Judge
suggests,
to dismiss
Department’s right
The
to dismiss him
merely
for this misconduct
because would have been even
if
clearer
he were a
bringing
disciplinary
action high ranking policy-maker, or if he had
brought
light
the fact that it was
distributed
his leaflets to the
while
responsible
officer who was
for the
duty
on
wearing
his
uniform. The
mailings.
hate
stronger
fact
case can
imagined
be
does not mean that
the actual case for
Sotomayor’s
Judge
argument
discharge is inadequate. Considering the
premised
also
misunderstanding
on a
are,
as they
balancing Pappas’s
facts
inter
government’s
Pickering.
burden under
right
pronounce
est in his
A
views
governmental employer’s right
to dis
against the
charge
employee by
an
interest of the
reason of his
importance
employer
matters
an
in promoting the efficiency of
depend
does not
employer’s
on the
having
performs,
service it
see Picker
suffered actual harm resulting from the
ing,
1731;
extent that the of the office and *9 of working relationships destruction Conclusion action.”); Heil, taking manifest before 147 (“the judgment F.3d of the district court is government prevail atl09 can if it reasonably can show that it believed that affirmed.
152 and else
McMAHON,
example, courts
this Circuit
Judge, concurring:
District
complaints
that
of race or
where have held
thoughtful
Judge Leval’s
agree
I
with
issue of over
gender discrimination —an
why
City’s
decision to
of
explanation
importance
“pub
not
whelming social
—are
not run afoul of
Appellant did
fire
only
if
to a
they
lic concern”
relate
separately,
I write
Pickering doctrine.
personal employment grievance. Saul
however,
I do not think we need
because
134,
Hosp., 4 F.3d
paugh
Cmty.
v. Monroe
Pickering.
agree with
dis-
to reach
Cir.1993)
(2d
(finding
employee’s
that
143
Appellant
engaged
was
trict
that
court
not
complaints of sex discrimination did
purely private speech.
implicate
public
of
concern be
matters
speech address
employee’s
an
Whether
by
“were motivated
and dealt
cause
be
public concern must
es a matter of
employment
her
individual
situa
“content, form, and con
by the
determined
tion”);
City
v. New York
Transit
Walker
statement,
as revealed
given
text of a
2227(DC),
Auth.,
99
2001 WL
No.
CIV.
Myers,
record.” Connick v.
the whole
2001)
(S.D.N.Y.
1098022,
Sept.19,
at *12
147-48,
1684,
138,
103 S.Ct.
complaints
that all
(rejecting
argument
(1983). To fall within the
L.Ed.2d 708
discrimination
relating
gender
to race or
concern,”
employee’s
an
“public
realm
concern);
public
Non
implicate matters of
satisfy two criteria.
It must
speech must
York,
New
City
nenmann
v.
political,
a matter of
social
relate to
(S.D.N.Y.2001)
121,
F.Supp.2d
135-36
community.
And the
other concern
(finding
testimony
that
officer’s
on
speak
upon
“as a citizen
employee must
female,
behalf of a
black co-worker
dis
concern,”
public
simply
“as
matters
public
not a matter of
crimination case was
only
personal
employee upon
an
matters
concern);
de Silva v. New York
Tran
147, 103
Id. at
S.Ct. 1684. Con
interest.”
Auth.,
96-2758(RJD),
sit
No.
1999 WL
CV
matters.
text as well as content
(E.D.N.Y.
1999)
17,
at *17
Nov.
Appellant
for which
The vile
(citations omitted) (“an
complaint
EEOC
para-
disciplined touched on matters of
on race and
discrimination is not
based
sex
political
mount
and social concern in this
therefore,
concern,
public
a matter of
See,
country.
e.g.,
protected speech
is not
under the First
that
(noting
148 n.
153
speech,
the assistant’s
viewed in its context
when the concerns race relations. Pappas argues that membership Locurto, officer and fire Supremacist certain organizations White fighters appearing were fired for in black- speech furthering transforms Day parade, face at a Labor on a float interests into speech. concern But that, tasteless, however commented on the noted, correctly as the district court Pap- integration effect of on the future racial pas’ choice of forum any is relevant (a composition neighborhood phe- assessment of such a claim. nomenon known as “tipping”) issue —an 1684; at subject that has Kurtz v. Vick litigation been (11th Cir.1988) rey, 855 F.2d this Court.1 The civic context of the offi- cers’ (“profession on this hot-button topic made concern loses force its concern nature so obvious that when it is considered that he took no affir it, no seriously one steps contested and this mative ... to inform proceeded Locurto, Court accordingly. large problems about the with which he Assoc., (2d Cir.1988). 1. United States v. Starrett *11 SOTOMAYOR, Judge, concerned”); Circuit Terrell gravely was so Police, dissenting: F.2d Sys. Texas Univ. of Cir.1986) (5th the (emphasizing ter- uncharted Today the Court enters any make effort of failure pertinence jurispru- Amendment ritory in our First the notebooks to contents communicate gov- holds that the The Court dence. whether notebooks determining public in the First does not violate ernment it is While speech). protected contained de- police it fires a Amendment when made in a not be need speech true racially inflamma- employee for partment “public concern” qualify as forum to public speech the consists tory speech—where Line Consol. v. Western speech, Givhan did mailings in which the Dist., Sch. himself, connect let alone identify (1979), Givhan does 58 L.Ed.2d department; where himself to the non-public nature of either not make of- away from the speech occurred audience to identity of the speech or time; employee’s own fice and on the ato directed which it is irrelevant involved employee’s position where the did, analysis. If it concern interest/publie con- authority policymaking no touching on by public employees all speech tact; virtually no evi- where there is context, issues, regardless of controversial disruption resulting workplace dence of “public automatically speech of be would it speech; and where directly from the Lewis, acknowledged in As we concern.” re- investigatory ultimately required the case. is not police departments sources of two Here, effort to forward Pappas made no attention of the speech bring might profit parties who “protests” to his requires community. us Precedent public’s dissatis knowing about the from apply we these as consider factors mail fund- direct over unsolicited faction test, each coun- balancing Pickering (such Bu the Better Business raising summary judgment granting against sels IRS, reau, oversight agencies, charitable department em- in favor of the media, large). Pap at or the sure, I find the To be ployer. his at This belies F.Supp.2d pas, hateful, offensive, patently this case private interest to cloak his effort not, should howev- insulting. The Court speech. “public concern” garb er, jurispru- over three decades gloss interpreta- one admits of but The record centrality of First Amend- and the dence and offensive Pappas engaged in vile tion: it our lives because ment freedoms in getting goal activity with sole it not like does confronted with mail solicitation from excised direct name employer government and because it mattered stated when lists. He so public response potential fears hearing we disciplinary most—at precipitated. —and alone own him at his word. His take should remov- Because condemneth him.
mouth
I. Public Concern
purely
is a
mailing
from
lists
his name
ing
matter,
majority
a threshold
concern,
engaged in
As
Pappas was
personal
materials
correct
to assume
speech,
though
even
purely personal
case constitute
on
matters of
issue
this
on
spoke
he
touched
words
of race
Issues
affirm for matter of
concern.
thus
public importance. would
“inherently of
con-
in relations are
district court
reasons stated
B(l)
Myers,
cern.” Connick v.
opinion.
of its
Part
*12
1684,
148 n.
case involves
more
em-
explained,
has
“the
Court
speaking on issues
of an
scenario
confidentiality, poli-
job requires
ployee’s
unrelated to his
entirely
race relations
contact,
greater
cymaking, or
job.
expres-
firing
her for
state’s
Pickering Balancing
II.
Test
McEvoy,
employer.”
her
that offends
sion
omitted)
marks
balancing
(quotation
York,
perceived
among
damage
may
it is the
bias
the NYPD
indeed be “im-
rank and file that
police department’s
But that
is not
mense.”
how the fact-
Ante,
problems.
the most
at 149.
causes
specific Pickering
applied.
test
The
undeniable,
truth
this assertion is
question is
potentially damaging
how
po
greatly depending
but varies
on which
is,
this
these leaflets
sent
—that
employees
why
are involved. This is
lice
employee
particular
this
under these
cir-
this
Supreme
Court and
Court scruti
cumstances.
unambigu-
We have stated
employee’s responsibili
nize the individual
that,
ously
in conducting the balancing
Rankin,
care. In
ties with such
Su
test, “a court must consider whether the
preme
applied
analysis
Court
this
sought
protected
statement
‘impairs
be
law enforcement context
found that
discipline by superiors
harmony among
or
... an
“where
serves no confi
co-workers,
impact
has
detrimental
on
dential, policymaking,
or
contact
working
close
...
relationships
impedes
*14
role,
danger
agency’s
the
to the
successful
performance
the
speaker’s
of the
duties or
functioning
employee’s private
from that
regular operation
interferes
the
”
Rankin,
speech is minimal.”
483 U.S. at
Cowen,
enterprise.’ Lewis v.
165 F.3d
390-91,
Examples
The further that for a Knight Dep’t state.” v. Conn. Pub. police officer disseminate racist materi- (2d Health, Cir.2001). promote als tends to the view New deprive fact gov This alone does not York officers are According racists. Court, legitimate ernment of its interest capacity “[t]he of such state- matter, higher but its is with re damage ments to the effectiveness of the spect purport department “employees speak who community im- is Ante, government.” for the mense.” at 147. Moore again, Here (10th Wynnewood, 57 majority’s has an F.3d Cir. observation element of 1995). factor de requires significance undeniable truth but refinement. of this factor, pends presence At upon some level of abstraction or another aggrega- tion, discussed, potential already regarding responsi- for racist statements to First, the likeli- balancing it reduces example, the test: employee. For
bilities of
Lewis,
F.3d at
disruption.
did not
See
hood of
that the Police Commissioner
fact
Second,
when
the free
NYPD
it enhances
purport
represent
lit-
employee
would mean
statement
because the
making racist
interests at stake
Where,
here,
no
has
as
member of
speaking
capacity
tle.
in his
“as the
contact,
this as-
authority or
such
he
to be.” Pick-
general public
seeks
Moreover, the facts of
pect
significant.
Educ.,
563, 574,
ering v. Board
in this
particularly compelling
are
(1968).
this case
In
It
is also
the em
con-
away
implicates
from the office on
case
matters
occurred
this
Connick,
ployee’s
employee ques-
time.
own
far more than did the
cern
I,
workplace questionnaire
was a
supra
issue
Part
see
tionnaire
public con
upon
that “touched
matters of
Pappas’s
fa-
tipping the scales further
only
(“The
limited sense” and
cern
most
Lewis,
*15
at 162
vor. See
characterized as
accurately
would be “most
speech
on
employee’s
the
touches
more
internal
employee grievance concerning
an
concern, the
significant public
matters of
policy.”
office
461 U.S. at
disruption
gov-
greater the level
the First Amend
Finding
into the
and
lead
that,
seems to be
even
ty’s core concern
to a
conclusion.” Id. at 153 n.
different
a low-level
though Pappas was
in
adopted this dictum
allows a to launch investigation, employee’s
an ferret out an anonymously expressed away
views from workplace and unrelated to the em-
ployee’s job, bring to the atten- *16 community,
tion of the media and the hold TRUESDELL, Appellant, James D. public disciplinary hearing, and then ter- because, minate the point, government “reasonably be- The PHILADELPHIA HOUSING AU- potentially lieved would THORITY, body corporate poli- disrupt government’s ... activities.” tic; Greene; Baylor; Carl Barbara Santoro, (2d Heil v. Featherson, Deborah As individuals Cir.1998). perversion This is a of our capacities. their official standard, “reasonable belief’ does give respect to due the First Amendment No. 01-1557. at stake.
interests Appeals, United States Court of
Third Circuit. CONCLUSION Argued Jan. 2002. recognize Pickering test af- 7,May Filed fords substantial deference government employers, particularly in the law enforce-
ment context. The NYPD’s concerns
about race relations in the community are
especially But poignant. there are limits.
“At point, some such concerns are so re-