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In support of an implied state constitutional free speech tort in public employment retaliation cases.

I. Introduction

As a society, we consider freedom of speech to be one of our most cherished values. (1) Indeed, the first provision to be ratified in the Bill of Rights, the First Amendment to the U.S. Constitution, secures freedom of speech and the press against limitation or restriction by Congress. (2) As the Supreme Court has reminded us, free speech is a cornerstone of our democracy:

"Those who won our independence had confidence in the power of free and fearless reasoning and communication of ideas to discover and spread political ... truth." ... [A] broad conception of the First Amendment is necessary "to supply the public need for information and education with respect to the significant issues of the times.... Freedom of discussion, if it would fulfill its historic function in this nation, must embrace all issues about which information is needed or appropriate to enable the members of society to cope with the exigencies of their period." (3)

Free speech by public employees on important public matters is an essential component of our right to free speech. (4) Government employee speech of public importance can cover the full gamut from providing opinions and advice about the workings of a governmental program, policy, or practice, to identifying and disclosing instances of perceived gross mismanagement, abuse or wrongdoing in the workplace. (5) Because of their intimate knowledge of how government programs operate, public employees have the ability to convey ideas and information that can improve government programs, and ensure that they are accountable to the public. (6) As the Supreme Court recently observed: "There is considerable value ... in encouraging, rather than inhibiting, speech by public employees. For '[government employees are often in the best position to know what ails the agencies for which they work.'" (7)

Despite the important contributions that public employees can make to ensuring that government programs operate efficiently and effectively, their ability to freely and frankly exchange information and ideas is often hampered by fear of job reprisals. (8) To make matters worse, coworkers, fearful of losing their jobs or suffering other adverse employment consequences because of perceived or actual reprisals taken against others who have spoken, become less willing to speak to others about important matters in the workplace. (9)

While the Supreme Court has recently observed that "[s]peech by citizens on matters of public concern lies at the heart of the First Amendment," and this includes "information related to or learned through public employment," (10) the Court has constructed a First Amendment standard in public employment retaliation cases that does not go far enough to protect public employee speech. This article will address some areas in which the First Amendment is not sufficiently protective of the free speech rights of public employees, and suggest that a more effective free speech cause of action be implied from article I, section 8 of the New York State Constitution.

A meaningful state free speech constitutional tort, with enhanced state standards, could encourage more expressive activity by public employees, which would benefit both the government and the public. (11) It could accomplish this objective by deterring efforts to chill free speech and providing compensation to victims of reprisals in situations that are not being adequately protected by the existing federal constitutional framework.

Part II of this article discusses the challenges that public employees face when they express their views on a government program or policy, or report perceived wrongdoing in the workplace. This part also touches upon the various interests at stake when public employees are encouraged to speak.

Part III of the article explores the First Amendment law in this area. It begins with a brief introduction and some historical background on the rights of public employees to speak in the workplace. This section continues with a discussion of the important legal developments in the First Amendment law of public employee speech, emphasizing the so-called Pickering (12) balancing test and two issues that have emerged in post-Pickering cases, the exclusion of speech by government employees when performing their ordinary duties and the ability of public employers to defeat otherwise valid speech retaliation claims using evidence of adverse workplace impact. The two final subsections in this part address other issues that are relevant to the need for a state constitutional tort: the potential impact of the Mt. Healthy defense, (13) the doctrine of qualified immunity, and New York's public employee whistleblower statute.

Part IV of the article turns to the text, history, and relevant case law interpretations of New York's constitutional free speech provision to evaluate whether New York law could support a more expansive state free speech standard. The first section of this part discusses New York's authority to establish independent constitutional law standards, and focuses upon a New York State Court of Appeals' decision that adopted a broader free speech standard under the state constitutional provision than is provided by the First Amendment. (14) The second section argues for a broader state free speech standard in public employment retaliation cases. The last section proposes several standards which would provide greater free speech protection for public employees in retaliation cases, and provides a justification for each standard.

Part V of the Article supports establishing an implied free speech state constitutional tort. It includes a discussion of some of the main arguments likely to be raised in opposition to establishing such a claim. The second section explains why a constitutional tort is necessary and no alternative remedies would be as effective.

II. CHALLENGES FACED BY PUBLIC EMPLOYEES WHO SPEAK OUT ABOUT MATTERS OF PUBLIC IMPORTANCE, AND THE STAKES INVOLVED IN ENCOURAGING SUCH SPEECH

Government employees, by the nature of their jobs, are in a position to observe and learn about the operation of government programs, how policies and practices work on the ground, and what changes can be made to improve the operation of government. (15) However, studies have shown, and reports in the media have confirmed, that many public employees remain fearful of expressing their views or disclosing possible abuses or serious mismanagement because of job reprisals.

A 2010 survey undertaken by the U.S. Merit Systems Protection Board (Merit Board), in which more than 40,000 federal employees responded, (16) showed that of the 11.1% of employees who acknowledged that they observed wrongdoing or wasteful activities involving their agency in the past twelve months, a majority either did not report the activity or only told someone who lacked the authority to take corrective action. (17) The survey also revealed that, of those respondents who reported an activity within the past twelve months, more than thirty-six percent perceived or suffered either threats or actual reprisals, and only seven percent were given credit by their agency management for coming forward. (18)

The findings from the Merit Board's survey are consistent with stories that appear in the media of federal employees who claim to have suffered threats or actual reprisals after disclosing what they believed was wrongdoing or wasteful activity at their agencies. For example, the media recently reported on serious problems with access to, and delivery of, medical care for veterans due in large part to employees at the Veterans Administration (VA) informing the media about practices--such as falsified records--used to cover-up long delays in scheduling appointments. (19) According to one report, "[s]ome of the veterans have died waiting for their claim to be processed ..." (20) Some of the VA employees who went to the media also complained that they had gone to supervisors previously but either their concerns were ignored or their supervisors tried to cover-up the long wait, and disciplined those employees who spoke up. (21)

One media report stated that investigators from the Office of Special Counsel (22) are looking into allegations that VA supervisors retaliated against sixty-seven employees who complained about falsification of records and other improper and potentially illegal practices. (23) Further, "[t]he Office of Special Counsel said it had blocked disciplinary actions against three VA employees who had complained, including one who was suspended for seven days after complaining to the VA's inspector general about improper scheduling." (24)

New York case law also includes several examples of public sector employees who claim to have been subjected to adverse job actions as a result of expressive activities. (25) The media has also reported on alleged reprisals against state and local government public employees who have complained about what they perceive to be improper policies and practices at their respective agencies. (26)

The public's right to know what is happening in government is impeded when public employees are fearful of speaking up on matters of public importance. (27) The Supreme Court has emphasized that the "interest at stake" (28) in public employee retaliation cases is not just between the government entity as employer and the public employee as speaker, but also includes "the public's interest in receiving the well-informed views of government employees engaging in civic discussion." (29) When public employees hesitate to give their opinions about the affairs of government, society bears the costs through the loss of potentially critical information that can add to the public discourse, reform government programs to better achieve their objectives, save taxpayer dollars, and improve peoples' lives. (30)

III. THE FIRST AMENDMENT AND THE RIGHT OF PUBLIC EMPLOYEES TO SPEAK ABOUT MATTERS OF PUBLIC CONCERN

A. Introduction

Public employees who wish to express their views in order to improve government programs are fostering the exchange of ideas and information that is "the essence of self-government." (31) However, it was not until the middle of the last century that public employees could even consider speaking up at work without fear of losing their jobs. (32)

B. A Brief History of Restrictions on Public Employees' Expression

Despite the goals of the First Amendment free speech clause, (33) over much of our nation's history people seeking government jobs as well as those employed by government were expected to forego publicly speaking about important issues of the day or publicly discussing matters that arose in the workplace without the permission of their employer. (34) Until the 1950s, there was no constitutional bar to a governmental employer prohibiting speech deemed to be detrimental to the governmental employer's best interests. (35) Governmental employers also had considerable leeway in refusing to hire a job applicant or dismissing a current employee because of the person's expressive activities. (36)

Public employees' rights to engage in expressive activities outside of work without being denied, or losing, a government job began to slowly change in the 1950s. Some lawsuits succeeded in challenging the requirement that a public employee take a loyalty oath swearing they had not been affiliated with the Communist Party or other "subversive" organizations as a condition of public employment. (37) Before these lawsuits were successful, public employees could lose their jobs for refusing to sign loyalty oaths. (38)

In the early 1960s, the U.S. Supreme Court went a step further and established that statements made by public officials on matters of public concern can receive First Amendment protection even if the statements are considered intemperate and are directed at superiors. (39) For example, in Garrison v. Louisiana, the Supreme Court, in an opinion by Justice Brennan, struck down as a violation of the First Amendment a seditious libel law that was used to criminally punish a district attorney for his public criticism of the judiciary. (40) The Court's decision confirmed the critical role that speech on matters of public affairs plays in our democracy:
   For speech concerning public affairs is more than self-expression;
   it is the essence of self-government. The First and Fourteenth
   Amendments embody our "profound national commitment to the
   principle that debate on public issues should be uninhibited,
   robust, and wide-open, and that it may well include vehement,
   caustic, and sometimes unpleasantly sharp attacks on government and
   public officials." (41)


C. Pickering v. Board of Education Applies the First Amendment to Protect Public Employees Who Speak on Matters of Public Concern

Then, in 1968, the Supreme Court decided Pickering u. Board of Education. Pickering held that public employees cannot be dismissed from their jobs because of what they say outside of work unless their employers can show disruption to their workplace--for example, that the speech interfered with working relations, maintaining discipline with superiors, or harmony among coworkers. (42) The Court established a balancing test under the First Amendment between the right of the public employee to speak and the right of the public employer to operate its enterprise efficiently. (43) This balancing test applies when public employees were disciplined for expressive activities on matters of public concern. (44)

Pickering, a high school teacher in Illinois, wrote a letter to a local newspaper in which he publicly criticized "the school board's handling of prior bond issue proposals and its subsequent allocation of financial resources between the schools' educational and athletic programs." (45) He was dismissed by the school board after a full hearing based on its determination "that the publication of the letter was detrimental to the efficient operation and administration of the schools of the district...," (46)

In reversing that determination, Justice Marshall, writing for the Court, focused on the value that inures to public discourse and debate when knowledgeable persons give informed opinions about issues that concern the public. (47) Teachers do not, said the Court, forfeit their First Amendment rights "as citizens to comment on matters of public interest in connection with the operation of the public schools in which they work...," (48) But the government, as employer, has interests "in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general." (49) The court's role in these cases was "to arrive at a balance between the interests of the teacher, 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." (50) The Court determined that the balance must be struck in favor of Pickering because he had written like "any other taxpayer" (51) on a matter of public concern, and the school board had failed to demonstrate that what he said was disruptive to Pickering's ability to function effectively as a teacher or the school's responsibility to maintain harmony in the workplace. (52)

D. Post-Pickering Cases Attempt to Define the Parameters of the Balancing Test

Several issues have emerged in the aftermath of Pickering and this article will touch on three of these issues. First, under what circumstances does a public employee speak as a "citizen" on a matter of public concern? Second, how much deference will the courts give to the employer's concerns for an efficient and effective workplace in applying the Pickering balancing test? Third, are there other defenses that governmental employers can raise when public employees claim that they were dismissed or suffered some other adverse employment action because of their speech? In each of these areas, the Court has provided guidance that raises concerns about the effectiveness of the First Amendment remedy in protecting public employee speech.

1. Citizen Speech vs. Government Employee Speech

To trigger the Pickering balancing test, the public employee's speech must be considered tantamount to speech by a citizen. (53) In Pickering, the Court appeared to equate citizen with a member of the general public, rather than a public employee, because Pickering had written his own letter to a local newspaper just like any member of the general public might do. (54) Therefore, the Court had no problem finding that Pickering was speaking as a citizen. (55) His letter to the local newspaper was quintessentially the type of speech that "any other taxpayer" (56) would engage in if he/she wished to express his/her opinion about local matters. Although Pickering's position at the high school may have given him some more access than the general public to certain details about how the school system spent the money raised in the prior bond proposals, the Court concluded that the plaintiffs teaching employment "is only tangentially and insubstantially involved in the subject matter of the public communication" he made to the newspaper, and therefore, "it is necessary to regard the teacher as the member of the general public he seeks to be." (57)

Pickering did not expressly define the word citizen and after the decision it was not clear whether the First Amendment would apply only to public employees who speak about matters outside the workplace that are "tangentially and insubstantially" related to their jobs. (58) If that were the case, it would mean that an employee could be dismissed for speaking about a matter of public importance which relates more directly to his/her job. However, in several post-Pickering cases, it became clear that Pickering could apply to speech connected to the workplace.

For example, in Givhan u. Western Line Consolidated School District the employee, a public school teacher, met privately with her principal to express concerns about what she perceived to be racially discriminatory policies and practices at the school. (59) Givhan was subsequently dismissed from her job, and sought reinstatement for violation of her First Amendment right to free speech. (60) The Supreme Court seemed to assume that Givhan had spoken as a "citizen" and rejected the school's argument that Givhan's speech was not covered by Pickering because it was made privately, and therefore did not constitute a matter of public concern: "Neither the [First] Amendment itself nor our decisions indicate that this freedom [of speech] is lost to the public employee who arranges to communicate privately with his employer rather than to spread his views before the public." (61)

Similarly, in Rankin u. McPherson, (62) the Court assumed that a clerical employee who worked for a constable in Texas was speaking as a citizen when she remarked to a co-worker, following an attempted assassination on the President, that if another attempt was made, "I hope they get him." (63) The employee was dismissed for making this remark. (64) In applying the Pickering balancing test, the Court instead focused on 1) whether the remark was "a matter of public concern," and 2) the nature of the employer's interests in dismissing McPherson for her statement. (65)

The speech in these cases was not directly related to the employees' usual job duties, and a question remained whether the speech of a public employee who raised concerns on a matter that pertained more directly to what he/she did at work would come within the purview of the Pickering balancing test. In Connick v. Myers, the Court gave an indication that the speech of government employees about their jobs might be treated differently. In that case, an assistant district attorney was fired for preparing and circulating a questionnaire to her coworkers seeking information about office morale and their confidence in supervisors. (66) In responding to Connick's argument that the Pickering balancing test did not apply because Myers' speech concerned "internal office matters," (67) the Court stated that "there is much force to Connick's submission." (68) The Court noted that Pickering's use of the phrase "'as a citizen, in commenting upon matters of public concern,' was not accidental" and reflected both the "historical evolvement" of public employee free speech rights, "and the common-sense realization that government offices could not function if every employment decision became a constitutional matter." (69) Connick concluded that most of Myers' speech was related to a personnel dispute and did not constitute "a matter of public concern," (70) but the court did not separately address whether Myers' speech affected her status as a "citizen" under the Pickering standard.

In 2006, almost forty years after Pickering, the Court expressly decided whether an employee whose speech is closely connected to his work responsibilities, is speaking as a "citizen." In Garcetti v. Ceballos, the Court determined that, for First Amendment purposes, there was a clear distinction between government employees speaking as members of the general public and government employees speaking in the course of performing their official job duties. (71)

The issue in Garcetti was whether a public employee who claimed that adverse employment actions were taken in retaliation for his speech (72) could sue under the First Amendment where the speech was made "pursuant to the employee's official duties." (73) Plaintiff Ceballos, a deputy district attorney who functioned as a supervisor during the period at issue for the Los Angeles County District Attorney's Office, wrote a "disposition memorandum" that both challenged the accuracy of an affidavit submitted by the sheriffs department regarding a search warrant and recommended dismissal of the underlying criminal case. (74) After a meeting between representatives of the district attorney's office and the sheriffs department, one of Ceballos' supervisors decided to proceed with the criminal prosecution pending disposition of defendant's motion to dismiss the charges. (75) At the subsequent hearing before the trial court, Ceballos was called by defense counsel and testified concerning his observations about the accuracy of the affidavit. (76)

Writing for the five-member majority, Justice Kennedy stated that Pickering and several cases that followed it were premised on the assumption that the government worker was speaking as a citizen, that is, just like any other member of the public, and not as a government employee. (77) The Court explained that when a public employee speaks about a matter that is "pursuant to" his/her "official [job] duties," he/she is no longer speaking as a citizen and his/her speech receives no protection under the First Amendment. (78) That is because "[w]hen a citizen enters government service, the citizen by necessity must accept certain limitations on his or her freedom." (79) Public employers, said Justice Kennedy, "need a significant degree of control over their employees' words and actions" since public employees "often occupy trusted positions in society" and "they can express views that contravene governmental policies or impair the proper performance of governmental functions." (80) Because Ceballos' memorandum was found to be written pursuant to his official job responsibilities, the Court determined that the First Amendment did not apply to his speech. (81)

The dissenting Justices in Garcetti took the majority to task for trying to draw a distinction between speech by public employees functioning as citizens and speech by government employees in the course of performing their jobs. Justice Stevens wrote that "[t]he notion that there is a categorical difference between speaking as a citizen and speaking in the course of one's employment is quite wrong." (82) Indeed, if the Court had applied the Pickering balance, it might have ruled differently because, as the circuit court determined, Ceballos' memorandum addressed a matter of public concern and the district attorney had '"failed even to suggest disruption or inefficiency in the workings of the District Attorney's Office' as a result of the memo." (83)

Determining when speech is or is not "pursuant to" an employee's "official job duties" is a slippery slope that fails to provide employees reasonable guidance as to when their speech will be protected. (84) Garcetti's standard does not acknowledge the complex nature of government work, as well as the varied and oftentimes changing work duties and work responsibilities performed by government employees. (85) The Garcetti standard is difficult to apply in practice. Lower courts have struggled to develop workable standards to determine when speech activity is made "pursuant to" an employee's "official duties." (86)

The Court's most recent decision in this area, Lane v. Franks, tries to clarify the meaning of speech "pursuant to" an employee's "official duties" but it still leaves many unanswered questions. The plaintiff in Lane claimed that his job as director of Community Intensive Training for Youth (CITY) was terminated because of truthful testimony he gave in court, under subpoena, with respect to a former employee who was terminated for misconduct and later indicted for wrongdoing that occurred when she worked for CITY. (87) The information Lane provided in his court testimony was based upon an audit he had authorized at CITY and information he had gained from that audit. (88) However, Lane did not testify in court under ordinary circumstances; testifying under subpoena was not a regular part of his day-to-day job duties. (89)

The Eleventh Circuit ruled that Lane's First Amendment challenge should be dismissed, inter alia, because even if Lane's speech was not part of his regular duties, it was clearly based on activities he engaged in within the scope of his official responsibilities as director of CITY. (90) Therefore, according to the circuit court of appeals, Lane could receive no First Amendment protection because his speech '"owes its existence to [the] employee's professional responsibilities' and is 'a product that the employer himself has commissioned or created.'" (91)

Justice Sotomayor's opinion for a unanimous Court disagreed with that analysis and limited the reach of Garcetti's "pursuant to" standard. (92) The Court noted that while Lane's testimony obviously related to his work, testifying in court proceedings was not part of Lane's "ordinary job responsibilities." (93) Based on that finding, the Court concluded that Lane's court testimony was speech by a citizen and not speech by a government employee pursuant to his official responsibilities "even when the testimony relates to his public employment or concerns information learned during that employment." (94) The Court also took special note of the importance of encouraging public employees to speak about the affairs of government:
   It would be antithetical to our jurisprudence to conclude that the
   very kind of speech necessary to prosecute corruption by public
   officials--speech by public employees regarding information learned
   through their employment--may never form the basis for a First
   Amendment retaliation claim. Such a rule would place public
   employees who witness corruption in an impossible position, torn
   between the obligation to testify truthfully and the desire to
   avoid retaliation and keep their jobs. (95)


Thus, Lane clarified Garcetti's "pursuant to" standard by explaining that public employee speech which just "relates to" an employee's job or is based on "information learned" in the course of fulfilling one's job, is within the scope of First Amendment protection if it involves a matter of public concern. (96) Despite Lane's attempt to limit the reach of Garcetti, the distinction between citizen speech and public employee speech continues to make little sense. Job duties can be very broad and changing, and employees should not have to guess whether something they say or write that is a matter of public importance will be considered "pursuant to" their "ordinary job duties"--and therefore not protected by the First Amendment--or will instead be considered to just "relate" to their job duties or be based on "information learned" in the course of their employment. (97)

2. The Government Employer's Defense Under Pickering

A second area in which the First Amendment standards for public employee speech are of concern, involves the broad scope of the employer's Pickering defense and the fact that the employer has the same burden of proof as the employee, that is, the preponderance of the evidence standard. (98)

Under Pickering, the employer's burden is to show that any adverse employment action was necessary for purposes of "promoting the efficiency of the public services it performs through its employees," (99) a standard that looks at such matters as maintaining discipline by supervisors, allowing coworkers to perform their jobs in harmony, ensuring that close working relationships that require loyalty and confidence are continued, or resolving a situation that interferes with the effective and efficient operation of the entity. (100) The public employer need not show actual harm but can satisfy its burden of proof by demonstrating that such harm is "likely" to occur (101) based on its reasonable "prediction of the disruption that such speech will cause...," (102) To be sure, employers should not have to delay taking action against employees who are disruptive or fail to properly perform their job until actual harm to the workplace "is manifest." (103) However, it can be very difficult for a public employee to respond to an employer's arguments that predict what is likely to occur in the workplace as a result of the employee's speech, and therefore, the predictive standard is a matter of concern for efforts to promote public employee speech in the workplace. (104)

In addition to having broad criteria in support of their defense to a claim that they retaliated against an employee because of his/her speech, public employers need only satisfy their burden of proof by a preponderance of the evidence. (105) The preponderance of the evidence standard establishes a roughly equal allocation of the risk between litigants, and is the norm where private parties are involved in a civil monetary dispute. (106) Allocating the risk of loss roughly equally, however, gives insufficient weight to the importance of the underlying constitutional right at stake. (107) It also does not take sufficient account of the fact that the public employer has the ability to take steps to ensure that supervisors do not engage in retaliatory conduct through its hiring, discipline, and training of employees. (108)

E. Other Public Employer Defenses in Public Employee Free Speech Cases

Public employers and their officials who are sued under 42 U.S.C. [section] 1983 (109) in First Amendment retaliation cases can raise a number of other defenses, (110) but two of these defenses--the Mt. Healthy defense, and the doctrine of qualified immunity--have had considerable impact on First Amendment cases. When these defenses are successfully raised, the public employee's First Amendment claim will either be dismissed entirely (Mt. Healthy) or his/her request for damages will be denied (qualified immunity). (111)

1. The Mt. Healthy Defense

In Mt. Healthy City School District Board of Education v. Doyle, plaintiff Doyle, an untenured teacher, provided the substance of an internal memorandum related to teacher dress code to a local radio station which then announced it as a news item. (112) Shortly thereafter, Doyle's contract was not renewed and he sued in federal court claiming that the school board's decision violated his rights under the First Amendment. (113) Doyle was provided with the reasons for the board's determination, which included his decision to provide the substance of the internal memorandum to the local radio station, but also included certain interactions he had with students, another teacher, and employees in the school cafeteria that raised questions about his "tact in handling professional matters." (114)

Although the school board conceded that one of the reasons for its decision not to renew Doyle's contract was his conduct with respect to the memorandum, (115) the Supreme Court determined that Doyle had no right to any remedy in court, including reinstatement and back pay, if the school board demonstrated that the non-renewal of Doyle's contract could be supported on other, valid, non-speech related grounds. (116) The board was entitled to show "that it would have reached the same decision as to [Doyle's] re-employment even in the absence of the protected conduct." (117) If the board could make that showing, the plaintiffs First Amendment claim would be dismissed (118) even though plaintiff had satisfied his burden of proof and demonstrated that expressive activity was a substantial or motivating factor in the loss of his job. (119) Because Mt. Healthy concluded that public employers face no liability if an employee's non-speech related conduct could serve as a legitimate basis for its adverse employment action, it added another layer of complexity to the Pickering balancing test and ensured that many of these cases would become fact-intensive lawsuits. (120)

2. The Qualified Immunity Doctrine

When a governmental defendant is sued in his "individual capacity" (121) under 42 U.S.C. [section] 1983 (122) for money damages for allegedly violating plaintiffs First Amendment free speech rights, (123) he/she can raise the doctrine of qualified immunity as a defense. (124) The purpose of qualified immunity is to allow government employees who exercise discretion to perform their duties without fear that a mistake or error in judgment will result in personal liability for damages. (125)

Qualified immunity applies whenever governmental officials' "conduct 'does not violate clearly established ... constitutional rights' a reasonable official, similarly situated, would have comprehended." (126) Moreover, for a constitutional or statutory right to be "clearly established," a judicial determination must have been made with reference to defendant's conduct in the context of a specific set of similar circumstances. (127)

The qualified immunity doctrine was determinative in Lane v. Franks. After holding that plaintiffs truthful testimony in that case was speech by a citizen on a matter of public concern, (128) the Court separately ruled that Lane could not recover any damages from defendant Franks because of qualified immunity. (129) At the time of the events, the relevant precedent from the Eleventh Circuit and the Supreme Court would have allowed an objectively reasonable public official to believe that Lane's actions in testifying truthfully in court based on information he learned on the job were outside the scope of First Amendment protection. (130)

In practice, when the doctrine of qualified immunity is "properly applied, it protects 'all but the plainly incompetent or those who knowingly violate the law.'" (131) Because First Amendment retaliation cases can be factually complex (132) and raise novel issues of law, (133) individual defendants can assert qualified immunity and have a strong chance of prevailing against a claim for damages. (134) Qualified immunity can defeat a claim for damages in closely contested cases, (135) and in cases where the lawsuit raises a novel legal issue that has not been resolved by the appellate courts. (136) Although there are still First Amendment retaliation cases where the defense of qualified immunity has been and will be denied, (137) the breadth of the qualified immunity doctrine is a matter of concern with respect to efforts to protect and promote public employee speech in the workplace.

F. Whistleblower Protection Laws

There is a patchwork of whistleblower protection laws at the federal, (138) state, (139) and local levels that provide protections to persons who disclose information about potential or actual violations of law, or other misconduct.* 140 Unfortunately, these laws are not comprehensive and they tend to be targeted at only certain types of speech activities and contain other restrictions. (141)

For example, New York's public employee whistleblower law, section 75-b of the New York Civil Service Law, which is intended to protect public employees from retaliation, (142) includes several restrictions. (143) Section 75-b forbids a public employer from dismissing or taking other disciplinary or adverse personnel action against a public employee because the employee discloses to a governmental body information concerning a violation of law that presents a danger to public health and safety, or information the employee "reasonably believes" is a violation of any law or regulation. (144) The protections in the statute do not apply unless, prior to disclosing such information, the employee makes a "good faith effort to provide [his/her employer] the information to be disclosed" and provides "a reasonable time to take appropriate action unless there is imminent and serious danger to public health or safety." (145) Further, the statute does not apply if the communication was made to an external source, such as the media, (146) or if the substance of the complaint pertained to concerns with a lawful program, policy, or practice. (147)

The statute's remedy section also has limitations. An employee who brings a claim under the statute "waive[s] ... the rights and remedies available under any other ... law, rule or regulation or under the common law." (148) In such lawsuit, the plaintiff can seek equitable relief, including reinstatement with back pay, lost benefits, and seniority rights, but not compensatory damages. (149)

Further, a public employee who is subject to the terms and conditions of grievance procedures under a collective bargaining agreement or some other state or local law, may be required to use those procedures and the remedies available there to challenge his/her employer's alleged retaliatory conduct. (150) In those grievances, the employee may assert that he/she was subjected to retaliation in violation of the protections set forth in section 75-b, but the arbitrator or hearing officer is not required to dismiss a disciplinary proceeding--and, if appropriate, reinstate the public employee with back pay--unless he/she makes a finding that the employee's discipline is based "solely" on the employer's violation of the statute. (151)

Therefore, a free speech constitutional tort cause of action is needed to ensure that public employees have comprehensive and meaningful protection against retaliatory conduct in the workplace.

IV. THE NEW YORK COURTS MAY ESTABLISH FREE SPEECH STANDARDS UNDER THE NEW YORK STATE CONSTITUTION THAT ARE BROADER THAN THE FIRST AMENDMENT STANDARDS

The New York courts, in construing the free speech provision of the New York State Constitution, are not bound by U.S. Supreme Court decisions interpreting the Federal Constitution, but may rely on those decisions in establishing independent New York rules. (152) The important public policy goals to be achieved by promoting public employee speech in the workplace support establishing a more expansive free speech cause of action under the New York State Constitution for public employee retaliation claims.

A. The New York Courts Have Construed Article I, Section 8 More Expansively than the U.S. Supreme Court Has Interpreted the First Amendment

Article I, Section 8 of the New York State Constitution states, in relevant part: "Every citizen may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press." (153)

The New York State Court of Appeals has made clear that the protections afforded to free speech and free press in this provision of the New York State Constitution are not limited by the First Amendment:

"The protection afforded by the guarantees of free press and speech in the New York Constitution is often broader than the minimum required by the First Amendment. Article I, [section] 8 of the Constitution assures, in affirmative terms, the right of our citizens to 'freely speak, write and publish' and prohibits the use of official authority which acts to 'restrain or abridge the liberty of speech or of the press.'" (154)

Therefore, the New York free speech provision contains stronger, more affirmative language, than the First Amendment with respect to protecting freedom of speech. (155)

A broader construction of free speech rights in New York is supported not only by the language of the constitutional provision, but also by its history and New York public policy. The free speech provision was adopted in 1821, thirty years after the ratification of the First Amendment. (156) Although there was limited discussion of the free speech provision at the 1821 ratification convention, and much of that discussion was focused on the second sentence which dealt with prosecutions for libel, what was said suggests that the free speech provision was meant to reaffirm the importance of the rights of free speech and the press in New York and to restrain the authority of the government to restrict these fundamental rights. (157)

As Judge Kaye explained:
   This State, a cultural center for the Nation, has long
   provided a hospitable climate for the free exchange of
   ideas.... That tradition is embodied in the free speech
   guarantee of the New York State Constitution.... Those
   words, unchanged since the adoption of the constitutional
   provision in 1821, reflect the deliberate choice of the New
   York State Constitutional Convention not to follow the
   language of the First Amendment, ratified 30 years earlier,
   but instead to set forth our basic democratic ideal of liberty
   of the press in strong affirmative terms. (158)


In accordance with this tradition, the New York State Court of Appeals has interpreted the free speech and free press provision of the state constitution more broadly than the First Amendment where state and local values, interests, and public policy called for a different standard. (159) For example, in People ex rel. Arcara v. Cloud Books, Inc., the Erie County district attorney made an application to close an adult bookstore for one year as a public nuisance "because some patrons [of the bookstore were] using the premises to commit illegal sexual acts." (160) In an earlier phase of the same case, the U.S. Supreme Court found that the bookstore's First Amendment rights were not even implicated by the challenged closure, (161) and sent the case back to the New York State Court of Appeals to determine whether broader speech protections are available under article I, section 8 of the New York Constitution. (162)

In analyzing the interests at stake, the Court of Appeals explained that free speech is often governed by community standards. (163) Therefore, in certain free speech cases, including freedom of expression in books, movies and the arts, the U.S. Supreme Court's role is to set minimum standards and the state's role is to establish its own independent standards based on state and local interests. (164) The Court of Appeals determined that if the closure order had an "incidental impact" on the exercise of freedom of expression, New York's free speech standard would require the district attorney to prove that the requested closure order is "no broader than necessary to accomplish its purpose." (165)

The Court of Appeals concluded that the closure order would have an "incidental impact" on the bookstore's freedom of expression because, even though the order's main purpose was to restrain illegal acts, to achieve that purpose the bookstore would be unable to engage in the constitutionally protected activity of bookselling for a year. (166) Thus, New York's free speech standard as applied in Arcara was more protective of freedom of expression than the First Amendment standard provided by the U.S. Supreme Court. (167)

B. Article I, Section 8 Should Be Read More Expansively than the First Amendment in Public Employee Retaliation Cases

Where an argument is made for a broader construction of the state constitutional free speech provision, the New York courts will independently evaluate the specific free speech claim taking into account state and local policies and interests. (168) New York public policy is supportive of broader speech rights for public employees. This policy is reflected, in part, by New York's enactment of section 75-b of the Civil Service Law to provide protections to public employees who come forward to disclose violations of law. (169) New York public policy also supports transparency and accountability in government, (170) and broader free speech rights for public employees furthers that public policy as well. (171) In addition, New York has, over its history, taken a leading role in advancing the right of its residents to freely express their views and opinions. (172)
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Title Annotation:Introduction through IV. The New York Courts May Establish Free Speech Standards Under the New York State Constitution That Are Broader than the First Amendment Standards B. Article I, Section 8 Should Be Read More Expansively than the First Amendment in Public Employee Retaliation Cases, p. 33-65
Author:Zwickel, Howard L.
Publication:Albany Law Review
Date:Sep 22, 2014
Words:7122
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