Westlaw Download Summary Report for GRAND VALLEY STA 3361520 Your Search: FREE SPEECH FIRST AMENDMENT GOVERNMENT EMPLOYEES Date/Time of Request: Monday, October 24, 2005 17:24:00 Central Client Identifier: GRANDVALLEY Database: LAWREV-PRO Citation Text: 51 RULR 1377 Lines: 1322 Documents: 1 Images: 0 The material accompanying this summary is subject to copyright. Usage is governed by contract with Thomson, West and their affiliates. 51 RULR 1377 51 Rutgers L. Rev. 1377 (Cite as: 51 Rutgers L. Rev. 1377) Rutgers Law Review Summer, 1999 Note *1377 EMPLOYEE FREE SPEECH RIGHTS IN THE WORKPLACE: BALANCING THE FIRST AMENDMENT AGAINST RACIST SPEECH BY POLICE OFFICERS AndrE G. Travieso [FNa1] Copyright (c) 1999 Rutgers University, The State University of New Jersey; AndrE G. Travieso I. Introduction Debates have long raged on the extent to which state governments as employers are entitled to limit the constitutional rights to the freedom of speech and expression of their public employees. Although the issue had been considered by the courts, it was not the subject of much debate until a recent incident in New York City involving a police officer and two firemen participating on a racist parade float brought the issue to the attention of the public. Throughout the late nineteenth and into the middle of the twentieth century, the Supreme Court took the position that free speech rights of public employees could be severely restricted by the State in its role as an employer. [FN1] The Court's archaic view survived for so long because it was widely believed that public employment was a privilege. [FN2] The notion that public employment was a privilege allowed state government employers to condition employment on the willingness of workers to relinquish their First Amendment rights. Over the last forty to *1378 fifty years, however, the Court has begun to reconsider the proper scope of the limitations placed on state employees' speech and expression. [FN3] Since the early 1950s, the state government, in its role as an employer, could reasonably regulate its employees' speech to some degree. [FN4] While, theoretically, it is logical that the extent to which the government should be able to limit state employees speech and expression should be greater than the extent to which the government can regulate the speech and expression of the general public, [FN5] the rationale behind such additional restrictions has not been clearly defined by the Supreme Court. In the area of public employee free speech, this balance is paramount because, as a citizen, a public employee should be entitled to the same constitutional protections as all other citizens. On the other hand, as an employee of the state government, public employees are subject to some employer control and should expect to compromise certain degrees of constitutional rights in order to allow state governments to most efficiently provide the public with services. *1379 This Note will outline some of the considerations and assumptions at the center of this debate and will utilize the aforementioned parade float incident to organize an appropriate framework. Section II describes the Broad Channel parade float incident involving a white police officer who publicly displayed his racist views of blacks. This section also lays out a historical road-map of the free speech rights of public employees. Section III sets out and expands upon the foundation for protecting the free speech rights of public employees against constraint by their employers through an analysis of the leading cases in this area. Section IV discusses court decisions involving the freedom of speech rights for police officers. Section V examines the intricate role that race plays in the interactions between the police and the people in urban communities in America. Section VI concludes that any police officer who publicly displays racist beliefs toward any sector of the community must be terminated because his beliefs and actions endanger the efficiency of State law enforcement. With America's historical racial hostility towards blacks and other minorities and the failure of its social system to create an equal place for all minorities, the police department and all of its police officers should strive for unbiased treatment of all people. If police officers are allowed to display open bigotry and racism towards certain minority groups, both the legitimacy and efficient running of the police department are greatly challenged. Allowing this sort of negative behavior by police officers would lead to a serious breakdown of minorities' trust in the ability of police officers to fairly interact with and protect them. The efficiency of the police department hinges on all people in society believing that they will receive fair and unbiased treatment by police officers. Without this belief, law enforcement's main purpose, namely serving and protecting society effectively and efficiently, is lost. II. Background A. The Incident--New York City State Employees Wear Blackface on Parade Float One New York City police officer, Joseph Locurto, and two New York City firemen, Jonathan Walters and Robert Steiner, were part of a group of white men who rode on a Labor Day parade float that mocked African-Americans. [FN6] The parade took place on Labor Day, Monday, September 7, 1998, at an annual parade sponsored by the *1380 Broad Channel Volunteer Fire Department and Ambulance Corps. [FN7] To most New Yorkers, Labor Day is a farewell to the City's summer fun and a well deserved day off from work. In 1998, for some of New York's employees, it marked a day of utter stupidity and bigotry. Broad Channel is a small island community in Queens, New York. [FN8] According to residents, the parade has a long tradition of an "anything-goes kind of open-air party" [FN9] where Jews, African-Americans, Hispanics, Asians, lesbians, and gay men have been parodied by people on floats with themes like "Hasidic Park," "Gooks of Hazzard," and "Happy Gays." [FN10] According to the 1990 census, the Broad Channel community is predominantly white, with only one percent of the community's 1,620 residents being non-whites. [FN11] The census listed no African-Americans or Asian-Americans living in Broad Channel. [FN12] The float on which the police officer and two firemen rode was called "Black to the Future: 2098." [FN13] The dozen or so men on the float wore "blackface," lipstick, and large Afro wigs to mimic black men. [FN14] Throughout the parade, the city officials threw watermelon slices from the float into the crowd of spectators and "break-danced" with large boom-box radios held next to their ears. [FN15] In the most despicable act of all, New York City fireman Jonathan Walters re-enacted the hate crime murder of James Byrd, Jr., a black man whose body was dismembered and torn while he was dragged to his brutal death behind a pickup truck in June of 1998, by three white men in Texas. [FN16] The "Black to the Future" float was captured on an amateur videotape *1381 and garnered national attention through broadcasts on the network news channels and reports by New York's major newspapers. [FN17] Three days later, the three city officials were suspended without pay after admitting to their supervisors that they rode on the float. [FN18] Mayor Rudolph Giuliani, the mayor of New York City, called the float a "disgusting display of racism" [FN19] and asserted that the city employees who rode on the float "demonstrated a total lack of understanding" for their oath of office. [FN20] When speaking of police officer Locurto, Mayor Giuliani declared that he would not let the city be held responsible for keeping him on the police force with the possibility that "three years from now he hurts somebody and somebody wants to know why he wasn't removed." [FN21] Mayor Giuliani concluded his remarks by stating that the police officer demonstrated that he could no longer carry out his duties as a city employee in an unbiased way. [FN22] Within one month of the float incident, both the firemen and the police officer had their formal city hearings and all were dismissed from their employment with the City of New York. [FN23] B. Historical Background on Public Employees' Freedom of Speech Rights Against Constraint By Their Governmental Employers The Supreme Court's analysis of the extent to which public employees*1382 retain their constitutional rights to free speech and expression above their employers' ability to constrain them, have passed through three different stages over the last fifty years. [FN24] In evaluating the constitutionally protected right of free speech, the Supreme Court has recognized that the interests of the employee, the employer, and the public are all significant. [FN25] During the first stage, the Supreme Court enabled the State to limit a public employee's speech because the Court believed that the State, as an employer, could condition employment on any "reasonable" terms, including the surrender of the constitutional right to free speech. [FN26] During the second stage, the Supreme Court realized that the State, even as an employer, was nonetheless bound by the federal Constitution. [FN27] Accordingly, the Supreme Court aggressively and steadfastly "applied conventional constitutional analysis to protect the rights of individual employees." [FN28] In the third and current stage, *1383 it appears that the Supreme Court has demonstrated an adherence to the analysis and framework of the second stage. Yet surprisingly, when the application of this analysis is closely examined, what is discovered is an emphasis on the importance of protecting the public interest in obtaining efficient services above the rights of the individual public employee. [FN29] Therefore, after appearing to shift toward aggressively protecting the individual rights of public employees, the Supreme Court has reversed itself and embraced a stricter standard that provides the state employer with greater control over its employees while still expressing respect for government employee's First Amendment rights. While courts do consider employees' rights to free speech and expression, it appears as though courts have unquestioningly sided with the State when it has attempted to restrain employees' rights for the purpose of promoting better and more efficient services to the public. While this pro-state employer stance may seem harsh, the parameters and rationale for this approach have been soundly established over the last thirty years by the Supreme Court. The next section explores how the Supreme Court has balanced the State's ability to restrict certain constitutional rights in order to better its provision of public services while not demanding employees to totally forfeit all of their First Amendment Rights. III. Laying the Groundwork for Protecting State Employees' Freedom of Speech Rights Against Constraint By Their Government Employers When a State as an employer attempts to limit and restrain its employees' speech in order to promote efficiency and service to the general public, the State's interests as an employer come into conflict with the restrictions which the First Amendment imposes on the State as a sovereign. [FN30] Historically, the courts viewed public employment as a privilege that the state government extended to individuals it employed--a privilege that could be conditioned on an employee's forfeiture of a degree of his or her First Amendment right to free speech. [FN31] *1384 This view of public employment, however, started to decline in the 1960s, when the Supreme Court ruled that state governmental employment could not be conditioned upon vague restrictions on First Amendment free speech. [FN32] Instead, the Court applied a more traditional First Amendment analysis to a state employer's encroachment on an employee's right to free speech. [FN33] This pro-employee stance demonstrated the Supreme Court's willingness to stop over-emphasizing the State's interest in the efficient management of the workplace and to start balancing the security of state employees' right to free speech in the analysis. A. The Leading Cases 1. Pickering v. Board of Education--Balancing Employee and Employer Interests The landmark case of Pickering v. Board of Education [FN34] presented the Supreme Court with the opportunity to establish concrete parameters for the standard for State regulation of state employees and their rights to free speech. In Pickering, a public school teacher was terminated after he wrote a letter to a local newspaper criticizing the school board. [FN35] Prior to this case, two schools of thought existed concerning state employees and their right to First Amendment protection. The first approach maintained that public employees relinquished *1385 their First Amendment rights when they accepted state employment. [FN36] Conversely, the second approach held that public employees should enjoy the same freedoms and latitude in speech rights as ordinary citizens. [FN37] The Supreme Court in Pickering rejected both of these views. It stated that the traditional view "unnecessarily abridged the First Amendment rights of public employees," while the second view failed to acknowledge the State's increased interest in regulating the speech of its employees. [FN38] The Court reasoned that a state employer possessed some interest in limiting or regulating the speech of its employees that was not insurmountable. [FN39] Rather, the government's interest when acting as an employer was both greater than and different from its interest as a sovereign trying to regulate the speech of citizens in general. [FN40] The Court then announced a new standard for dealing with state employees and their right to free speech under the *1386 First Amendment. The Court asserted that it wanted to "arrive at a balance between the interests of the (employee), as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." [FN41] In the interest of achieving this balance, the Court decided to examine restrictions on public employee speech on a case by case basis. [FN42] The established balancing test permitted the State to regulate or restrict the speech of its public employees that directly impaired state agencies in providing services to the people through its employees without undue disruption. [FN43] The Pickering balancing test established the framework for balancing public employee free speech rights against the government employer's interest in proper management and efficiency. [FN44] Within the boundaries of the test, it became necessary to specifically examine the type of speech involved and how that unconstrained speech would ultimately affect the services the government as employer could provide. After close scrutiny of the effect of harmful speech on the employee /employer relationship, the disruptive impact to the employer, and the nature of the matter of public concern, the Court should arrive at a conclusion as to whether the speech is protected. [FN45] The Court must first consider the disruptive nature of the speech and whether it deals with a matter of public concern in order to conduct a proper balancing analysis on the degree to which a public employee retains his or her right of free speech and expression. Ultimately, the Pickering balancing test is used when an employee's speech may be "fairly characterized as constituting speech on a matter of public concern." [FN46] Only when a court concludes that the free speech addresses *1387 a matter of public concern will that court balance the public employee's interest in free speech or expression against the interests of the state employer in managing an efficient workplace and the delivery of services. [FN47] This requirement, commonly called the "public concern doctrine," is the central issue in state employee free speech disputes. 2. Connick v. Myers--The Connick Test It would be fifteen years before the Supreme Court applied the Pickering balancing test. [FN48] In Connick v. Myers, [FN49] the Court had to determine whether an employee's right to free speech on a matter of public concern could be limited by the State's right, as an employer, to manage the services it provided in the interest of maximizing efficiency. [FN50] In Connick, petitioner argued that a questionnaire prepared by an employee only addressed internal office matters and should not have been considered speech on a matter of public concern. [FN51] Because the questionnaire failed to comment on a matter of public concern and, therefore, was not within the scope of the First Amendment, petitioner argued "that no balancing of interests (was) required." [FN52] Although the Supreme Court rejected these absolute characterizations, it did believe that the lower court "got off on the wrong foot in this case" by characterizing the questionnaire as dealing with a matter of public concern. [FN53] The Supreme Court reversed *1388 and found that the lower courts' rulings had "misapplied" the Pickering balancing test. [FN54] The Connick Court explained that the Pickering balancing test was to be preceded by a threshold test implicit in Pickering; if the state employee's speech "cannot be fairly characterized as constituting speech on a matter of public concern, it is unnecessary for us to scrutinize the reasons for (the employee's) discharge." [FN55] The Court further explained "that to identify speech as protected, it (i)s not enough to characterize the speech as falling generally within the realm of a matter of public concern." [FN56] The proper standard for "(w)hether 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." [FN57] While the Court reasoned that the standard being applied was an extension of the Pickering balancing test, the Connick Court actually altered the Pickering analysis. First, unlike the Pickering decision, the Connick Court's main focus was on the element of public concern as a separate inquiry. [FN58] While the Pickering Court did refer to speech dealing with matters of public concern, [FN59] it never enunciated *1389 a clear standard on the degree of public concern necessary for weighing the speech in question. [FN60] The Connick Court emphasized disruption of the workplace as the main concern when a public employee's free speech was to be limited by the state employer. [FN61] In contrast, the Pickering Court focused on the disruption of the relationship between the employees or between the employee and employer. [FN62] The Pickering decision only considered the indirect effect that any disruption would have on the overall efficiency of the workplace, [FN63] whereas Connick concentrated on how the employee's speech directly affected the workplace and the services provided to the public. [FN64] 3. Rankin v. McPherson--The Supreme Court's Application of the Connick Test In Rankin v. McPherson, [FN65] a very heated and sharply divided 5-4 decision, the Supreme Court made its first attempt to apply the Connick test. [FN66] In Rankin, a clerk in a county constable's office was terminated for making a negative statement about President Ronald Reagan. [FN67] The Rankin Court found that the clerk's statement was "made in the course of a conversation addressing the policies of the President's administration" and "came on the heels of a news bulletin regarding . . . an attempt on the life of the President." [FN68] Based on the context of this conversation and the earlier radio bulletin, the Rankin Court held that the statement "plainly dealt with a matter of public concern." [FN69] Apparently, if the employee's speech had been *1390 made prior to the mention of the President's policies, the Supreme Court might have found that the statement was not a matter of public concern and not protected. [FN70] What is clear from these cases is that there are no bright-line parameters to the public concern issue. Instead, Rankin and Connick demonstrate that the Supreme Court may, at their discretion, broaden or narrow the parameters of "public concern" when determining the constitutional status of a public employee's free speech right. [FN71] B. Dealing with the Threshold Issue of "Public Concern" In order to balance whether a state employee's right to free speech is protected against the state employer's right to manage and provide efficient services through its employees, the threshold issue is whether the free speech involves a matter of public concern. [FN72] "Protecting the right of all citizens to speak on matters of public concern is a primary interest underlying the First Amendment." [FN73] Free speech that involves matters of public concern has traditionally occupied the "highest rung of the hierarchy of First Amendment values." [FN74] Yet, in the thirty years since establishing the Pickering balancing test, the Supreme Court has done little to clarify what constitutes speech on a matter of public concern. [FN75] The most disturbing aspect of this lack of guidance is that only when a court finds speech that deals with a matter of public concern will it balance the public employee's right to free speech or expression against the interest of the state employer in managing the work environment. Presently, it remains unclear how the Supreme Court will evaluate whether speech embraces a matter of public concern. [FN76] *1391 Debates also rage over other courts' lack of consistency in identifying this type of speech. [FN77] A closer look at the Connick decision illustrates the Supreme Court's wavering on its opinion of what constitutes speech that is a matter of public concern. First, the Court hinted that the employee's intent must be to discuss issues of importance to the general public. [FN78] Therefore, if an employee was not speaking out to inform the public but rather only to air personal grievances, then the employee's speech would not be protected under the First Amendment. [FN79] Next, the Connick Court seemed to imply that certain types of speech or expression could identify certain employee statements that have an inherent public concern element. [FN80] The Court's rationale in support of this "inherent public concern" stance was that certain subjects were so clearly of general concern or interest to the public that the Court would not have to examine the purpose behind the statements or evidence of the public's interest in the topic. [FN81] In this regard, contrary to its earlier reasoning, the Court was willing to *1392 recognize that an employee need not actually intend to inform the public but might still cross the public concern threshold if the topic being discussed was "a matter inherently of public concern." [FN82] The last approach posited by the Connick Court considered the actual interest demonstrated by the public in the employee's statement or expression. [FN83] Implicitly pursuant to this rationale, media attention or other objective indicators of public interest would satisfy the public concern threshold, at least to the extent of triggering the opportunity to be protected by the First Amendment. [FN84] Ultimately, these various versions of the public concern threshold do little to aid in this debate, as they hinder the development of a consistent standard for determining when a statement or expression is of public concern. [FN85] IV. Cases Involving Police Officers' Freedom of Speech Rights Cases involving police officers and their rights to free speech and expression illustrate courts' serious aversion to allowing police officers to use these rights when they may interfere with the State's law enforcement ability to serve and protect the public effectively. In the majority of cases, courts have established that police officers should not expect their personal behavior to be protected when that behavior is racist and prejudiced against those constituents they are assigned to serve and protect. "Discipline" is rarely ever a serious consideration in cases involving most public employees' freedom of speech or expression and their role in society. [FN86] A few circuit courts, however, have held that "discipline" could be an important factor to consider when dealing with police officers. [FN87] "(D)iscipline is a necessary component of a smoothly-*1393 operating police force. Although this necessity of discipline does not rise to the same level as required by the military, . . . discipline must be maintained among police officers . . . ." [FN88] Accordingly, the unique position that police officers occupy in the community requires that police officers enjoy a lower level of free speech protection than other state employees such as teachers, postal workers, and toll booth collectors. [FN89] A. McMullen v. Carson In McMullen v. Carson, [FN90] the Eleventh Circuit Court of Appeals recognized that "(t)he First Amendment does not protect personal behavior in the law enforcement context to the same extent that it does in other areas of governmental concern." [FN91] In this case, the issue before the court was whether, in terminating him, a sheriff's office had violated a clerk's First Amendment rights to free speech and political expression. [FN92] The court held that an employee's First Amendment rights were not violated when the law enforcement agency terminated his employment for active participation in an organization with a history of violent activity that became known to the public and created an adverse public reaction. [FN93] The employee's activities "seriously and dangerously threatened to cripple the ability of the law enforcement agency to perform its public duties effectively." [FN94] The court further articulated that a person employed by a law enforcement agency was subject to greater First Amendment restraints *1394 than other citizens who work for the State. [FN95] The court alluded to the need for high morale and internal discipline in the police force and the reasonable likelihood of harm to the police agency due to the clerk's association with the Ku Klux Klan as sufficient to support full consideration of the police department's asserted interests in restricting its employees' speech. [FN96] In applying the Pickering balancing test in McMullen, the court considered Mr. McMullen's own "rights to free speech and political expression" along with "the government's interest in the effective and efficient fulfillment of its responsibilities to the public." [FN97] The court placed the public importance of the type of speech on the side of Mr. McMullen's interest in the speech because, as the court noted, "Connick cautioned that 'a stronger showing (of adverse effects) may be necessary if the employee's speech more substantially involved matters of public concern."' [FN98] Accordingly, the court concluded that a showing of adverse effects had been satisfied and stated that any "governmental interests jeopardized by public awareness of Mr. McMullen's Klan participation" outweighed the state employee's right to free speech. [FN99] B. Reagan v. Bichsel In Reagan v. Bichsel, [FN100] the court articulated a belief that a police *1395 officer's strong prejudices toward minority groups was " hurtful to the morale of the police department, (would) cause divisions within the community, and hamper (the police officer's) capacity to serve the public in a fair and equal manner." [FN101] The court acknowledged that the main issue was not whether an ordinary citizen could make anti-Semitic and anti-African-American statements under the umbrella of First Amendment protection, but rather whether a state police officer could make such statements in violation of the rules of his employment. [FN102] The Reagan court explained that the clear evidence of the officer's racial attitude and views toward certain segments of society with whom he dealt as a police officer would disrupt the efficiency of the police department serving the public. [FN103] Accordingly, the court determined that when one accepted certain state employment positions, such as a police officer, whose role is to serve and protect people, that person agreed to give up certain rights in the interest of the efficient rendering of services. [FN104] C. Thomas v. Whalen Thomas v. Whalen [FN105] is another case where the court found that a state employer did not violate an employee's First Amendment rights even though the employee was disciplined for engaging in objectionable speech outside of the employment arena. [FN106] In this case, the court declared that the police department could restrict an officer's free expression even though the conduct did not directly interfere with the officer's job duties. [FN107] The significance of the Thomas decision lies in its realization that a state's police department could disassociate itself from certain ideas or views that conflict with the efficient management and services delivered through its employees. The next section discusses the fragile subject of race relations between whites and minorities, specifically focusing on how prejudicial attitudes towards minorities may hamper or destroy the State's *1396 ability to serve certain communities fairly and equally. Racial intolerance and bigotry have always been troubling sources of conflict in America. [FN108] Any court that allows police officers to openly display racist and discriminatory views against minorities is not only directly impeding the efficiency of the police department, but also adding unnecessary fuel to an existing combustible and fractured relationship between certain minorities and police officers. V. Understanding the Effect of Race in America and How Racism in the Police Force Harms a Community Very few issues in American history have been as obtrusive, persistent, and volatile as relations between whites and blacks. This nation's character is, in part, a product of its race relations. Ostensibly, this country was "conceived in liberty and dedicated to the proposition that all men are created equal." [FN109] Yet, because America has not applied that guiding principle to the treatment of most minorities, a common view held by many minorities is that certain institutions, like police departments, have continued to maintain the status quo through racially discriminatory practices. In order to counter this view in the eyes of most minorities, the legitimacy of the police department and its authority is necessary. When police officers are involved in displays of racism and bigotry, the legitimacy of State power is jeopardized. The specter of racial discrimination and violence in America, especially incidents involving law enforcement officers harming minorities, continues to challenge the efficient functioning of government. All individuals should have the liberty to expect equal treatment and service from their government to ensure the full participation in and the integrity of American institutions. When exposed to discrimination and violence, such liberty is lost and the integrity of the governmental institutions is compromised. The issue of what type of influence race may have on how police officers treat and view citizens of the urban communities that they are paid to safeguard is complicated. The police department's responsibilities to the public bring them into constant and direct contact with diverse groups of people. Police officers must be able to interact with and serve Asian-Americans, Latin Americans, Americans of European descent, African-Americans, and other ethnically diverse individuals in order to fulfill their occupational responsibilities. The ability to interact is critical to effective service and protection of the *1397 people within a police officer's jurisdiction. Sadly, the high incidence of police officers espousing racist views necessitates taking race into consideration when examining the status of police/minority relations in urban communities. [FN110] It is clear that minorities inherently distrust the police, [FN111] and that a large percentage of white police officers are prejudiced against minorities. [FN112] While this may seem like a bold and unsubstantiated statement, it is based on the assumption that white police officers' attitudes toward minorities reflect many of the dominant racial views against minorities. [FN113] "At best, police are *1398 average American citizens, generally racist, suspicious of difference, and imbued with class bias." [FN114] Consequently, if one thinks that it is a fair assessment to characterize America as a society rooted in racial prejudice--then I am confident that my statement that white police officers are prejudiced towards minorities can withstand any criticism. [FN115] VI. Back to the Broad Channel Incident and the Argument that the Police Officer's Termination was Justified Because His Action Endangered the Efficiency of Law Enforcement New York City police officer Joseph Locurto rode on a Labor Day parade float in blackface and ridiculed African-Americans in a disgusting display of racial bigotry. [FN116] Meanwhile, two of his counterparts, also state employees, danced in "blackface" and mimicked the heinous murder of a Texas black man. [FN117] Despite these acts, police officer Locurto proclaimed that he was not a racist and that his termination was unjust. [FN118] On October 26, 1998, Mr. Locurto, along with his lawyer from the New York Civil Liberties Union, filed suit *1399 in federal district court, alleging that he was illegally terminated for exercising his free speech rights. [FN119] The threshold question in applying the Pickering balancing test is whether Officer Locurto's speech or expression may be "fairly characterized as constituting speech on a matter of public concern." [FN120] Nothing in the press or in the newspapers indicated that Officer Locurto's intention on the float was to deal with a "matter of public concern." In fact, Officer Locurto hinted the opposite when he said that his participation on the float was "spontaneous" and just a "joke." [FN121] Relying on Pickering, the Connick Court observed that "when employee expression cannot be fairly considered as relating to any matter of political, social, or other concern to the community, government officials should enjoy wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the First Amendment." [FN122] Accordingly, Officer Locurto should have little chance of proving that his participation on the racist float can be characterized as relating to any matter of public concern. Even if one assumes arguendo that Mr. Locurto could convince the court that the public interest prong of the Pickering standard was satisfied, because his participation on the float dealt with the "public concern" that Broad Channel would one day be racially integrated, [FN123] he would still fail the second prong of the test. The second prong of Pickering requires the court to balance the employee's interest in free speech against the government's interest in the effective and efficient fulfillment of its responsibilities to the public. [FN124] The gross caricature of the way that black people look, talk, dance, and the mocking representation of the murder of James Byrd, Jr. all exemplify this police officer's racist views toward blacks and minorities. As one official for the city stated, Mr. Locurto's behavior undermined "the public's trust" in the police department and the public's belief in receiving even-handed treatment from the department. [FN125] Consequently, the firing of Officer Locurto should be upheld because his actions on the float are a disruption that undermines the public's *1400 trust in the police department in a way that renders it unable to effectively provide services to minority communities. Mr. Locurto may also claim that he should not be disciplined for off-duty speech because it infringes upon his freedom of speech. Although the First Amendment was designed to assure that debate on matters of public concern are uninhibited and open, [FN126] the First Amendment's guarantees have never been absolute. There are many restrictions on free speech because the right must be balanced against competing interests, such as the public welfare. In this case, the free speech rights of Officer Locurto are weighed against the interests of the State of New York in promoting efficient public services provided through its police officers. Some governmental agencies, like police departments, have a stronger interest in regulating their employees' speech than do non-governmental employers, especially when such speech or expression may disrupt the state employer's services to the public. [FN127] For this reason, using the rationale of Pickering, as extended by Connick, to determine when a public employee's speech is protected, Officer Locurto's speech should not be afforded constitutional protection. While fear of hurting one's feelings should not be the threshold to suppress free speech, when the anti-minority speech is being used by police officers with certain power over minorities, [FN128] a closer examination is in order. Because the expression of racial epithets is likely to severely damage the relationship between police officers and the public, the identity and position of the speaker as well as the identity of the target, should be relevant in determining whether there is a disruption. Therefore, New York's termination of Officer Locurto should be upheld because his off-duty speech may cause a disruption in the efficient provision of police services in minority communities. Another reason for punishing a police officer's use of a racial epithet is that it may cause injury to a minority's psyche and will have *1401 an impact upon his or her sense of well-being. [FN129] This injury is likely to be most obvious in the context of a white police officer and an African-American man because of the white police officer's membership in one of society's traditionally dominant groups and the history of discrimination against African-Americans. A minority, who may already feel disadvantaged by hostile race relations, may further be disenfranchised and angered when a white officer hurls racial slurs. In this context, a racial epithet may be perceived as a threat to a minority. This type of action may be viewed as a sign of the ever-present possibility of bias-motivated violence by the police department, and with it, evoke a real fear in the recipient for his physical well being. [FN130] Furthermore, such displays exacerbate underlying tensions and fears held by minorities, especially those in urban communities, that white police officers are the true enemies and should be feared. Commentators have suggested that there is an inverse relationship between the use of force by police officers and their effectiveness as law enforcement agents. [FN131] Paradoxically, "the ultimate police resource is the legitimate use of force" against minorities. [FN132] Mr. Locurto's participation in the parade validates a recent report by Amnesty International on police brutality in New York which stated that "the evidence suggest(s) that the large majority of the victims of police abuses are racial minorities, particularly African-Americans and people of Latin American or Asian descent." [FN133] The report concluded that "(r)acial disparities appear to be especially marked in cases involving deaths in custody or questionable shootings" by the police. [FN134] In addition, a recent study that reviewed complaints of police harassment and brutality in New York City found that "there exists a perpetual pattern of police violence in New York City led *1402 primarily by white officers, and directed at African-American males particularly, and people of color generally." [FN135] Thus, the participation by a white, New York City, police officer on a racist float further erodes relations between minorities and police officers. Police officers are not only entrusted with the duty of protecting our communities; they must also be able to understand and work with all the people in those communities. Any conduct jeopardizing this working relationship places at risk all the citizens of these communities. In this incident, Officer Locurto's expression was beyond constitutional protection because it served to create disharmony, and impeded the proper and efficient functioning of New York's entire Police Department. Such disharmony adversely affected the relationship between the police and the community thereby inhibiting the efficacy of the police force. New York should have a significant interest in the off-duty speech and conduct of its police officer, Mr. Locurto, because it has a compelling interest in avoiding the consequences of more strained relationships between its police department and the minority communities in New York. Finally, racist conduct by police officers weakens the public's trust and dissolves the public's confidence in the police department and its officers. Police officers can perform their duties "only if they merit the trust and confidence of the community they serve." [FN136] Without public trust and confidence, the effective operation of the police within urban communities is demolished. Officer Locurto's job entailed not only protecting the residents of New York, but also displaying a level of discipline and a willingness to work for all of New York's ethnic communities. In light of his participation on the float, Locurto's disruptive behavior demonstrates that he had no regard for his responsibility as a New York City police officer. The Broad Channel float incident runs counter to everything we as a society want to believe about how police officers view minorities. We need to ask whether minorities in New York City should expect that Officer Locurto could be color-blind in his treatment of them after viewing his inappropriate behavior. For many, the float and Officer Locurto's participation embodied the flagrant racial bias of a certain subset of white police officers in New York City. *1403 VII. Conclusion On the issue of free speech in public employment, the Supreme Court has acknowledged two competing interests: first, the interest of the public employee in exercising his or her First Amendment right to free speech; and second, the interest of the state employer in maintaining a workplace that can efficiently provide services to the public. To address these interests, the Supreme Court has created a two-prong test. As a threshold consideration, the first prong--the "public concern" test--deals with the governmental employer's efficiency and managerial interests. Upon satisfaction of this test, the second prong--the balancing test--weighs the employer's interests against the employee's First Amendment right to free speech. These two tests are particularly important in the case of public actors, such as police officers, because public actors should be held to a higher standard of conduct than ordinary citizens. Police officers have a duty to uphold the Constitution, which seeks to provide each person with equal rights under the law, [FN137] and fulfill their duties in an effective and efficient manner. Allowing an officer to engage in racist behavior only hinders his or her ability to serve the public in a fair and equal manner, and therefore, that police officer violates the Constitution which he or she is in charge of upholding. The two-prong test created by the Supreme Court ensures that the constitutionally guaranteed equal rights of minorities are not sacrificed by the abuse of First Amendment rights by police officers responsible for serving the public. The purpose of this Note was to explore how a recent incident involving a white New York City police officer, who openly displayed racist views, would play out under the microscope of the above-mentioned competing interests. For some, the firing of the police officer by New York was the right decision. But for the defenders of the police officer's First Amendment right to free speech, this decision was further proof of the State's efforts to suppress certain views. Those that have been the most vocal defenders of this absolute First Amendment right, however, have tended to come from socioeconomic and racial backgrounds that are predominately free from police misconduct and harassment. [FN138] For most blacks and other disfavored *1404 minorities, the failure of the Court to uphold the termination of a police officer with such little regard and respect for the people he is paid to serve would be a crushing and crippling blow. This author [FN139] also knows the devastation that an encounter with racist police officers can have. [FN140] Allowing Officer Locurto to continue in his position would essentially grant a state employee the implicit power to unleash all of his negative attitudes, warped perceptions, and bigotry on the individuals he is paid to protect while hiding behind his badge and his First Amendment right to legitimize his hatred. America's quest for racial equality is being undermined by hatred and racist views held by many in our society. Ultimately, unless something is done to help with the strained state of relations between minorities and the police, racial equality will remain a dream. The First Amendment rights to free speech and expression should not be permitted to be used to remind African-Americans, Latinos, and other minorities of their second-class status in America. [FNa1]. J.D. Candidate, Rutgers University School of Law-Newark, 2000. B.A., Columbia University, 1992. First and foremost, my deepest gratitude goes to Monique Manigault who has been my one constant pillar of strength and support. I would like to thank my family for all their love throughout the years. To Joshua Ramirez, thank you for always being my other set of eyes in all my writing endeavors. Finally, I would also like to thank everyone at the Rutgers Law Review who assisted in the preparation of this Note. [FN1]. See, e.g., Adler v. Board of Educ., 342 U.S. 485, 492-93 (1952) (nullifying a teacher's right to free association by virtue of her employment with the State as a teacher). Adler is one of the leading cases showing just how little First Amendment protection state employees had once they worked for the State. For another example, see Connick v. Myers, 461 U.S. 138, 143 (1983) , where the Court discussed restrictions on state employees exercising recognized constitutional rights. [FN2]. See infra notes 26 and 31 and accompanying text for examples of how the Court viewed state employment as a privilege that required employees to give up certain constitutional rights upon accepting public positions. [FN3]. "Congress shall make no law. . . abridging the freedom of speech. . . . " U.S. Const. amend. I. Although the First Amendment literally applies only to the legislature, the Supreme Court has interpreted the Free Speech Clause to provide protection against individual employment decisions. See Charles W. Hemingway, A Closer Look at Waters v. Churchill and United States v. National Treasury Employees Union: Constitutional Tensions Between the Government as Employer and the Citizen as Federal Employee, 44 Am. U. L. Rev. 2231, 2233 & n.5 (1995). Yet, state government officials often cite a rule or regulation governing the workplace to support the termination of an employee. See id. at 2237 n.22. Hence, the rule or regulation cited can be considered the "law" abridging free speech. See id. The Supreme Court almost never makes this connection, however, when it decides public employee free speech cases. Instead, the Court looks at the firing decision itself as the focal point for its First Amendment analysis. See, e.g., Pickering v. Board of Educ., 391 U.S. 563, 570-71 (1968) (focusing on the decision by the Board of Education to fire a public school teacher). [FN4]. See, e.g., Keyishian v. Board of Regents, 385 U.S. 589, 602 (1967) (stating that state employers could only restrict their employees' free speech within reasonable parameters). [FN5]. See Karin B. Hoppmann, Note, Concern with Public Concern: Toward a Better Definition of the Pickering/Connick Threshold Test, 50 Vand. L. Rev. 993, 996 n.10 (1997) ("(S)cholars have often complained that governmental efficiency in the workplace should not counterbalance individual rights."). The Supreme Court, however, has reasoned that the efficiency argument gains substantial weight in granting First Amendment rights to public employees and efficiency is an important factor for the Court in cases involving restrictions of free speech rights. Cf. Waters v. Churchill, 511 U.S. 661, 675 (1994) ( "The government's interest in achieving its goals as effectively and efficiently as possible is elevated from a relatively subordinate interest when it acts as sovereign to a significant one when it acts as employer."). [FN6]. See David W. Chen, Officers and Firemen Wore Blackface on Float, Officials Say, N.Y. Times, Sept. 11, 1998, at B1. [FN7]. See id. [FN8]. See id. [FN9]. Id. [FN10]. See Jim Yardley, An Island That Sees No Racism; Enclave in Queens Defends a Float, and a Way of Life, N.Y. Times, Sept. 14, 1998, at B1. The article went on to describe the outrage and shock of Broad Channel residents to the terrible backlash and "over-reaction" of the media and Mayor Rudolph W. Giuliani to their parade and the "fun" float parodying African-Americans. See id. [FN11]. See Chen, supra note 6, at B1; see also Ed Mazza, Parade of Goons: The Lynching "Joke" that Shamed NY, (visited Sept. 14, 1998) . [FN12]. See id. [FN13]. See id. [FN14]. See Kit R. Roane, City Suspends Three Workers in Racial Float, N.Y. Times, Sept. 12, 1998, at D7. [FN15]. See id. [FN16]. See id. The three white men involved in the James Byrd killing all have been charged with capital murder. Additionally, as of the completion of this Note, two of the men involved in the killing have been convicted and sentenced to death. [FN17]. See id.; see also Michael Cooper, Firefighters Who Wore Blackface Defend Their Actions, N.Y. Times, Oct. 8, 1998, at B6. Fireman Jonathan Walter testified at his city suspension hearing that he never meant to offend anyone when he parodied the killing of James Byrd, Jr. by dangling off the back of the float during the parade. See id. He testified that the person who was videotaping the float coaxed him on and asked him to re-enact the Byrd killing twice so she could get him on video. See id. He also felt that the media represented the incident in an "offensive manner." See id. [FN18]. See Roane, supra note 14, at D7. [FN19]. Chen, supra note 6, at B1. [FN20]. Roane, supra note 14, at D7. With the Mayor acting so quickly in suspending the three city employees, city lawyers wondered whether the Mayor actually had the right to fire them or whether they were protected by the First Amendment. See id. [FN21]. Kit R. Roane, Suspended Police Officer Apologizes, Calling Float 'a Big Mistake', N.Y. Times, Sept. 13, 1998,
1 at 51. [FN22]. See id. [FN23]. See Monte Williams, 2 Firefighters Who Rode Float in Blackface are Dismissed, N.Y. Times, Oct. 27, 1998, at B6. In a three-page decision, the Fire Commissioner of New York agreed with an administrative judge who found that the firefighters did not "truthfully" testify during their departmental trial about their actions on the float at the parade in Queens. See id. The report stated that the firemen's behavior undermined "the public's trust in the Fire Department and the public's belief that they will receive even-handed treatment from the department." Id. [FN24]. See Developments in the Law--Public Employment, The Constitutional Rights of Public Employees, 97 Harv. L. Rev. 1738, 1739 (1984) (hereinafter Constitutional Rights of Public Employees). [FN25]. See id. [FN26]. See, e.g., Garner v. Board of Pub. Works, 341 U.S. 716 (1951) (upholding law that required public employees to sign an oath of loyalty to their state employer); United Pub. Workers v. Mitchell, 330 U.S. 75, 95 (1947) (allowing restrictions on political activities of government employees). But see Constitutional Rights of Public Employees, supra note 24, at 1738-39 ("By the 1960's, under the influence of an 'individual rights vision' of the relationship, the Court had reversed its focus and begun to recognize and vigorously protect employees' interests."). [FN27]. See Constitutional Rights of Public Employees, supra note 24, at 1739. [FN28]. Id. See also, e.g., Pickering v. Board of Educ., 391 U.S. 563, 574-75 (1968) (striking down the termination of a public school teacher who wrote a letter to a newspaper exercising his First Amendment right to free speech); Wieman v. Updegraff, 344 U.S. 183, 190-91 (1952) (striking down a state statute that required public employees to take an oath of loyalty denying past affiliations with Communists or the Communist party); Waters v. Churchill, 511 U.S. 661, 668 (1994) (holding that speech of a state employee is protected if it deals with a matter of public concern and the employee's interest in the speech outweighs the potential for harm to the interests of the state employer in efficient public service to the community at large). Furthermore, the Court concluded that the test to be used to determine if the speech deals with a matter of public concern should be the same as that for considering a common law action for invasion of privacy. See Connick, 461 U.S. at 143 n.5 (citing the Restatement (Second) of Torts
652D cmt. j (1977)). The Restatement test for this issue provides: The scope of a matter of legitimate concern to the public is . . . not limited to news in the sense of reports of current events or activities. It extends also to the use of names, likeness or facts giving information to the public for purposes of education, amusement or enlightenment, when the public may reasonably be expected to have a legitimate interest in what is published. Restatement (Second) of Torts
652D cmt. j (1977). [FN29]. See, e.g., Connick, 461 U.S. at 150 (upholding the termination of a public employee for circulating a questionnaire implicitly critical of office policy). [FN30]. See supra notes 1-5 and accompanying text for discussion of how state employment restrictions on employees conflict with the U.S. Constitution. [FN31]. See, e.g., Adler v. Board of Educ., 342 U.S. 485, 493 (1952) (upholding New York civil service law that barred members of subversive groups from teaching). In Adler, the Court articulated its attitude toward public employees: It is clear that such persons have the right under our law to assemble, speak, think and believe as they will. . . . It is equally clear that they have no right to work for the State in the school system on their own terms. . . . They may work for the school system upon the reasonable terms laid down by the proper authorities of New York. If they do not choose to work on such terms, they are at liberty to retain their beliefs and associations and go elsewhere. Id. at 492. [FN32]. See Keyishian v. Board of Regents, 385 U.S. 589, 609-610 (1967) (invalidating a New York statute that prohibited teachers from joining certain groups). This case involved different provisions of the statute upheld in Adler. See id. at 594-95. Now the Supreme Court decided to not only strike down this statute, but also to specifically repudiate the Adler Court's "go elsewhere" rationale. See id. at 605. [FN33]. See Constitutional Rights of Public Employees, supra note 24, at 1741. [FN34]. 391 U.S. 563 (1968). This was the first case in which the Supreme Court decided to fully extend the First Amendment right to public employees and found that restrictions on employee freedom of speech might violate an employee's First Amendment right. See id. at 574-75. [FN35]. See id. at 566. In the letter, Mr. Pickering attacked the School Board's handling of a revenue proposal and the proposed allocation of funds between the school's educational and athletic programs. See id. He also charged that the superintendent of schools attempted to prevent teachers in his district from opposing the proposed revenue plan. See id. [FN36]. See D. Gordon Smith, Comment, Beyond "Public Concern": New Free Speech Standards for Public Employees, 57 U. Chi. L. Rev. 249, 251 (1990) (detailing the shifting approach in regards to whether state employees had any First Amendment protection at work). In the state phase of the Pickering case, the Illinois court followed the traditional view concerning public employees' right to free speech under the First Amendment. See Pickering v. Board of Educ., 225 N.E.2d 1, 6 (Ill. 1967) ("(Mr. Pickering) is no more entitled to harm the schools by speech than by incompetency, cruelty, negligence, (or) immorality. . . . By choosing to teach in the public schools, plaintiff understood the obligation to refrain from conduct which in the absence of such a position he would have an undoubted right to engage in."). For an additional case employing the traditional view, see McAuliffe v. New Bedford, 29 N.E. 517, 517 (Mass. 1892) which held that "(t)he petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman." [FN37]. See Smith, supra note 36, at 251. See also Keyishian, 385 U.S. at 605-06 ("(T)he theory that public employment which may be denied altogether may be subjected to any conditions, regardless of how unreasonable, has been uniformly rejected."); Nancy I. Oxfeld, Free Speech for Public Employees: Justice Holmes Had It Wrong, New Jersey Lawyer, Aug./Sept. 1994, at 36, 37 (rejecting the traditional view that public employees lost their right to free speech). [FN38]. Pickering, 391 U.S. at 568; cf. Richard A. Epstein, Unconstitutional Conditions, State Power, and the Limits of Consent, 102 Harv. L. Rev. 4, 68 (1988). Epstein states: (A) court can simply ask whether the kinds of restrictions that the government seeks to impose on its own employees are similar to those that private firms in competitive labor markets impose on employees engaged in similar activities. Perhaps some positions in government are so unique that no private analogue applies, but even in this context, the large number of government employers may help to create a competitive labor market. Id. [FN39]. See Pickering, 391 U.S. at 568. [FN40]. See id. [FN41]. Id. This holding is now called the "Pickering balancing test," which permits state-imposed restriction of employee free speech only when the employee's speech disrupts the efficiency of the public employer. [FN42]. See id. [FN43]. See id. at 569. The Court then defined this "disruption" as a state employee's speech that interferes with the efficiency of the state employer in serving the people. See id. The Court went on to state that this "disruption" occurred when the state employee's speech: (1) adversely affects the employee's own performance; (2) disturbs harmony and discipline in the workplace; (3) interferes with the regular operation of the government office or agency; or (4) undermines public trust in the office or agency by disseminating false information in such a way that renders the government employer unable to effectively counter the employee speech. See id. at 569- 73. [FN44]. See id. [FN45]. See id. at 573. This was the Court's attempt to ensure the reason for the creation of the First Amendment and its right to allow "opportunities to contribute to public debate" were not eradicated. Id. [FN46]. Rankin v. McPherson, 483 U.S. 378, 384 (1987) (quoting Connick v. Myers, 461 U.S. 138, 146 (1983)). [FN47]. See Cynthia K. Y. Lee, Comment, Freedom of Speech in the Public Workplace: A Comment on the Public Concern Requirement, 76 Cal. L. Rev. 1109, 1109-10 (1988). [FN48]. See Smith, supra note 36, at 253 n.18 (stating that the Supreme Court in Pickering never actually applied the Pickering balancing test in deciding the case). [FN49]. 461 U.S. 138 (1983). In Connick, the New Orleans District Attorney's office terminated Sheila Myers after she prepared and circulated a questionnaire soliciting responses from her co-workers "concerning office transfer policy, office morale . . . (and) the level of confidence in supervisors." Id. at 141-42. Ms. Myers opposed her transfer to another section of the criminal court by her supervisor Harry Connick and she attempted to convince him to revoke the transfer. See id. at 140-41. After Ms. Myers was terminated, she sued the District Attorney's Office alleging that she was "wrongfully terminated because she had exercised her constitutionally protected right of free speech." Id. at 141. [FN50]. See id. at 140. [FN51]. See id. at 143. The lower court in Louisiana examined the speech and determined that Ms. Myers' questionnaire did address a matter of public concern because it "relate(d) to the effective functioning of the District Attorney's Office." Myers v. Connick, 507 F. Supp. 752, 758 (E.D. La. 1981) (finding that if the questionnaire or speech was "(t)aken as a whole. . . . Myers' expression constitute(d) protected speech."). [FN52]. Connick, 461 U.S. at 143. [FN53]. See id. (reversing the lower court finding that Ms. Myers's questionnaire was protected speech because it addressed matters of public concern); see also Stephen Allred, Note, Connick v. Myers: Narrowing the Free Speech Right of Public Employees, 33 Cath. U. L. Rev. 429, 446 (1984). [FN54]. See Connick, 461 U.S. at 146 ("When employee expression cannot be fairly considered as relating to any matter of political, social, or other concern to the community, government officials should enjoy wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the First Amendment."). The Court resolved the balancing test in favor of the District Attorney's Office when it held that the single question concerning the public matter did not require Ms. Myers's supervisor to allow her to disrupt the efficient management and running of the District Attorney's Office in its service to the state's people. See id. at 153-54. [FN55]. Id. at 146. [FN56]. Allred, supra note 53, at 447. [FN57]. Connick, 461 U.S. at 147-48. The Court also noted that this "inquiry into the protected status of speech is one of law, not of fact." Id. at 148 n.7. The Court later found that of the fourteen questions in Myers's questionnaire, only one question directly regarded a matter of public concern which asked about any pressure to work for office-supporting political candidates. See id. at 149. Next, the Court concluded that it was required to balance the employee's right to speak about unwilling participation in political campaigns against the state's right to maintain the efficiency of its service by removing a disruptive employee. See id. at 148-51 (stating that the "pressure to work (o)n political campaigns (was) a matter of interest to the community upon which it is essential that public employees be able to speak out freely without fear of retaliatory dismissal"). [FN58]. See id. at 147-48. [FN59]. See Pickering, 391 U.S. at 571 ("More importantly, the question whether a school system requires additional funds is a matter of legitimate public concern . . . . "). [FN60]. See Hoppmann, supra note 5, at 1004. [FN61]. See id. (citing Connick, 461 U.S. at 150-51). [FN62]. See Hoppmann, supra note 5, at 1004 (interpreting the Pickering decision). [FN63]. See id. [FN64]. See Connick, 461 U.S. at 150-51. The Supreme Court then suggested that the value of the employee's speech in question was to be considered in both prongs of the test. See id. at 151-52. The dissent criticized this consideration of the speech's value at both stages of the test as "double-weighting." See id. at 157-58 (Brennan, J., dissenting). [FN65]. 483 U.S. 378 (1987). In Rankin, Ms. McPherson was having a private conservation with a co-worker in an office inaccessible to the public when she heard on a news bulletin on the radio that there was an assassination attempt on President Reagan. See id. at 378. McPherson then started to discuss President Reagan's policies and stated, "(I)f they go for him again, I hope they get him." Id. McPherson's remark about the President was overheard by someone in the room at the time and was reported to her supervisor, Mr. Rankin. See id. [FN66]. See id. at 384. [FN67]. See id. at 381-82. [FN68]. Id. at 386. [FN69]. Id. See also Lee, supra note 47, at 1120. [FN70]. See Lee, supra note 47, at 1120. [FN71]. See id. at 1121. [FN72]. See id. [FN73]. Id. at 1109. [FN74]. NAACP v. Claiborne Hardware Co., 458 U.S. 886, 913 (1982) (quoting Carey v. Brown, 447 U.S. 455, 467 (1980)). [FN75]. See Allen v. Scribner, 812 F.2d 426, 430, modified by, 828 F.2d 1445 (9th Cir. 1987). The Ninth Circuit acknowledged, "(t)he (Supreme) Court has not articulated a precise definition of 'public concern,' . . . . It has allowed only that the determination of whether an employee's speech deals with such an issue is to be made with reference to 'the content, form, and context' of the speech." Id. (quoting Connick v. Myers, 461 U.S. 138, 147-48 (1983)); see also Lee, supra note 47, at 1110 (articulating that the problem of ambiguity concerning the issue of a matter of public concern surfaced in the Rankin decision). The 5-4 Supreme Court decision in Rankin was a heated split between the majority who concluded that the employee's speech "'clearly dealt with a matter of public concern,' and the dissent (who) concluded just as strongly that (the employee's speech) was not a matter of public concern." Id. (quoting Rankin, 483 U.S. at 386). [FN76]. See Sanford N. Greenberg, First Amendment: The Free Speech Rights of Public Employees, 57 Geo. Wash. L. Rev. 1281, 1286 (1989) (analyzing Washington D.C.'s application of the public concern threshold test and finding that it mirrors the confusion and lack of uniformity of the Supreme Court on this important issue). [FN77]. See id. [FN78]. See Connick, 461 U.S. at 148 n.8. The Connick Court hinted that courts should always consider the employee's intent at the threshold in order to prevent every employee from arguing that he or she is protected by the First Amendment. See id. [FN79]. See id. at 148 (finding that Ms. Myers's questionnaire had no First Amendment protection because while one question involved a public concern issue, the questionnaire as a whole did not concern informing the public about her state employer's misconduct); Greenberg, supra note 76, at 1286-87 (stating that the Court in Connick found that the questionnaire was too disruptive to allow, even with one question involving a matter of public concern). [FN80]. See Greenberg, supra note 76, at 1287. [FN81]. See Connick, 461 U.S. at 148. The Connick Court cited Givhan v. Western Line Consolidated School District, 439 U.S. 410 (1979), as an example of the "inherent public concern" standard. See id. at 146. In Givhan, a public schoolteacher brought a suit when her teaching contract was not renewed after she made private complaints to her principal of racially discriminatory employment policies at her school. See 439 U.S. at 411-12. The Connick Court commented that although Givhan's statements were made in private to her principal rather than to inform the general public of the school's alleged misconduct, the nature of her statements were such that the topic was inherently of public concern. See Connick, 461 U.S. at 146. However, a closer look at the Connick opinion may illustrate that it never set out a criteria by which other courts should determine whether a topic is a matter of inherent public concern. See Editorial Note, The Public Employee's Right of Free Speech: A Proposal for a Fresh Start, 55 U. Cin. L. Rev. 449, 466 (1986) (finding that there is still no bright line standard on how to categorize what speech embodies the public concern element). [FN82]. Connick, 461 U.S. at 148 n.8. [FN83]. See Greenberg, supra note 76, at 1287-88. [FN84]. See id. at 1288. Again, the Connick opinion lends the best example of this method. In Connick, the Court decided that one of Ms. Myers's questions in her questionnaire dealt with a matter of public concern. See Connick, 461 U.S. at 149. The Court never discussed whether Ms. Myers's intent was to inform the general public of possible political pressures on employees, but the majority did conclude that the questionnaire passed the public concern threshold test because of a demonstrated public interest in the question of whether public employment should be awarded because of political allegiance. See id. [FN85]. See Greenberg, supra note 76, at 1288. Greenberg discusses in great detail three separate Washington D.C. Circuit cases involving public officials' freedom of expression rights that further muddy the road to a clear threshold test. See id. at 1288-90. [FN86]. See Richard Hiers, Public Employees' Free Speech: An Endangered Species of First Amendment Rights in Supreme Court and Eleventh Circuit Jurisprudence, 5 U. Fla. J.L. & Pub. Pol'y 169, 216 (1993). [FN87]. See id. The author discusses Williams v. Board of Regents, 629 F.2d 993 (5th Cir. 1980), cert. denied sub. nom., Saye v. Williams, 452 U.S. 926 (1981), to illustrate that the courts have held that discipline of a police officer is of public importance and to illustrate the police department's need to maintain a good working relationship between itself and the public it serves. See id. See also Williams, 629 F.2d at 1002-03. [FN88]. Williams, 629 F.2d at 1003. In Williams, although the court found that discipline of police officers was pertinent to maintaining a good working relationship with the public, the court still held that because the police officer's speech related to a matter dealing with a public concern, this critical factor outweighed the State's interest in suppressing Mr. Williams's speech. See id. [FN89]. See Hiers, supra note 86, at 217. [FN90]. 754 F.2d 936 (11th Cir. 1985). [FN91]. Id. at 939-40. In McMullen, the employee, a clerk who worked in the records section of the sheriff's office, joined the Ku Klux Klan as a recruiter for the organization and distributed literature in public areas. See id. at 939. [FN92]. See id. at 938. [FN93]. See id. at 941. [FN94]. Id. at 941 (finding that the public reaction to the knowledge that a sheriff's clerk was a recruiter for the Ku Klux Klan would cause distrust of the law enforcement agency). [FN95]. See id. at 938. [FN96]. See id. at 939. The court noted that if the clerk was allowed to stay employed, the black community would distrust the sheriff's office. See id. at 942. [FN97]. Id. at 939. [FN98]. Heirs, supra note 86, at 301 (quoting McMullen, 754 F.2d at 939) (internal quotations omitted). [FN99]. McMullen, 754 F.2d at 939. The court considered Mr. McMullen's speech or association with the Klan as posing a severe threat to the police department's ability to perform effectively its service to the public. See id. The McMullen court went on to state: The Sheriff's office is charged with securing the safety of persons and property, and enforcing the law. Under our system of Government, that duty can be performed effectively only with the consent of the vast majority of those citizens policed by the Sheriff's office. Efficient law enforcement requires mutual respect, trust, and support. Id. [FN100]. 284 S.W.2d 935 (Tex. Civ. App. 1955). In Reagan, an off-duty police officer stated to two newspaper reporters that he was a leader of an organization for the advancement of white people. See id. at 936. He then told the reporters that "Jewish people were plotting against the rest of the (world), and that any minister who preached brotherhood and social equality . . . " with black people was a Communist. Id. at 936-37. The police officer later expressed that Jews, blacks, and Communists "sought an amalgamation of races through inter-marriage" and the overthrow of the white race. Id. at 937. [FN101]. Id. [FN102]. See id. The officer also informed the reporters that he would be available for any additional interviews to further explain his anti-Semitic and anti-black views, showing his willingness to continue such behavior. [FN103]. See id. at 937. [FN104]. See id. [FN105]. 51 F.3d 1285 (6th Cir. 1995). [FN106]. See id. at 1291. In Thomas, a police officer was terminated after he made a public presentation on behalf of the National Rifle Association (NRA) while wearing a police insignia and identifying himself as a police officer. See id. at 1287-88. [FN107]. See id. at 1291. [FN108]. See Daniel R. Fusfeld & Timothy Bates, The Political Economy of the Urban Ghetto 9 (1984). [FN109]. Abraham Lincoln, Gettysburg Address (1863), reprinted in Information Please Almanac: Atlas and Yearbook (Theodore B. Dolmatch ed., 33d ed. 1979). [FN110]. For examples of racist police views of blacks, see The Christopher Commission on Tuesday Issued a 228-page Report on the Activities of the Los Angeles Police Department, L.A. Times, July 10, 1991, at A12. Here, the L.A. Police Department provided the city with numerous displays of racist views by its white police officers. See id. Included were taped radio transmissions that captured racist and derogatory comments made by white officers about blacks and other minorities such as "right out of 'Gorillas in the Mist"' and "sounds like monkey-slapping time." Id. See also Tatsha Robertson & Erin Kennedy, Deposition: Merrillville's Top Cop Called Blacks "Niggers," Post. Trib. (Indiana), Dec. 29, 1991, at A1. Chief of Police Donald Markle of Merrillville, Indiana, admitted in a deposition that he used racial slurs against blacks such as the term "niggers." See id. [FN111]. The general perception within most African-American communities is that police are not interested in protecting them, but rather are interested in maintaining the prevailing white power structure. Historical and contemporary fact and perception confirm that police officers have been employed to oppress black people. See Carol S. Steiker, Second Thoughts on First Principles, 107 Harv. L. Rev. 820, 839-41 (1994). See also, e.g., Janet Elder, Trial Leaves Public Split on Racial Lines, N.Y. Times, Oct. 2, 1995, at B9 (citing poll reporting that just 37% of African-Americans have any level of confidence in their local police and that only 28% do not expect to be treated more harshly than whites in an encounter with a white police officer); Bob Herbert, A Brutal Epidemic, N.Y. Times, Apr. 28, 1997, at A15 ("In many neighborhoods, ethnic minorities are treated with the kind of routine disrespect and brutality that was the hallmark of the Old South. Very few people in high places are concerned about this problem."); Bob Herbert, Police Overkill, N.Y. Times, Apr. 11, 1997, at A29 (reporting that slow investigations of police misconduct by New York City "inevitably will contribute to the disheartening feeling among many law-abiding New Yorkers, especially in black and Latino neighborhoods, that the guardians of the law are reluctant to move against possible police misconduct"). [FN112]. See, e.g., David H. Bayley & Harold Mendelsohn, Minorities and the Police: Confrontation in America 144-47 (1969) (citing a study performed in Denver showing data that white police officers are prejudiced against minorities); Bob Herbert, Crossing the Abyss, N.Y. Times, June 17, 1996, at A15 (discussing the possibility that white police officers "on duty in a neighborhood full of people for whom they have only disdain" do not need to be provoked before they mistreat minorities, as "that is what white cops do to black men"); Jerome H. Skolnick, The Police and the Urban Ghetto 6 (1968) (noting the racist views of white police officers are the "prevailing informal norms in the communities in which typical white policeman resides"). [FN113]. See supra notes 110-11 and accompanying text for discussion on police attitudes and views toward minorities. See also Fusfeld & Bates, supra note 108, at 12-17 (tracing the "systemic pattern of discrimination imposed upon urban blacks by the dominant white society"); Douglas S. Massey & Nancy A. Denton, American Apartheid: Segregation and the Making of the Underclass 148- 55 (1993) (describing how white society in America created and maintained race discrimination "through a series of private decisions and institutional practices" that have allowed limited resources to black neighborhoods and denied political and social equality to blacks); Steiker, supra note 111, at 833 (noting that many of the characteristics of the modern police force can be traced, in part, to nineteenth century slave patrols in southern cites); Wayne Washington, Trial Further Tarnished Image of Black Men, Star Trib. (Minneapolis), May 29, 1993, at 6A ("(Police officers believe) they've got a free rein when it comes to black men. You can be stopped any time, anywhere, simply because of your skin color."). [FN114]. Coramae Richey Mann, Unequal Justice: A Question of Color 146 (1993) (citing report that suggests that police officers usually come from working, lower-middle, and middle class families); see also Robin K. Magee, The Myth of the Good Cop and the Inadequacy of Fourth Amendment Remedies for Black Men: Contrasting Presumptions of Innocence and Guilt, 23 Cap. U. L. Rev. 151, 204 (1994). [FN115]. See Bayley & Mendelsohn, supra note 112, at 145 (finding that police share the racial prejudices of their communities). Furthermore, the overwhelming majority of police officers in America are white. See Mann, supra note 114, at 135 (finding that the "overall breakdown of officers is 83.0% white, 10.5% African-Americans, 5.2% Hispanic, and 1.3% other rac(es)/ ethnic(ities)"). [FN116]. See Williams, supra note 23, at B6. [FN117]. See id. [FN118]. See Roane, supra note 21, at 51. [FN119]. See Williams, supra note 23, at B6; Officer Sues City Over Float Flap, (visited Feb. 20, 1999) . [FN120]. Connick v. Myers, 461 U.S. 138, 146 (1983). [FN121]. See Roane, supra note 21, at 51. [FN122]. Connick, 461 U.S. at 146. [FN123]. See Roane, supra note 21, at 51. Days after Mr. Locurto's suspension from the Police Department, he stated that the float's theme was one of future integration of Broad Channel, where according to the 1990 census, no blacks were among its residents. See id. [FN124]. See Pickering v. Board of Educ., 391 U.S. 563, 568 (1968). [FN125]. See Williams, supra note 23, at B6. [FN126]. See Roth v. United States, 354 U.S. 476, 484 (1957). [FN127]. See Pickering, 391 U.S. at 568; see also Connick, 461 U.S. at 140. [FN128]. See, e.g., Algernon D. Black, The People and the Police 190 (1968) (writing about the negative effects racial slurs used by police officers have on minorities). The author provides: Physical abuse is only one source of aggravation in the ghetto. In nearly every city surveyed the Commission heard complaints of harassment . . . . These, together with the contemptuous and degrading verbal abuse, have great impact in the ghetto. As one Commission witness said, these strip the Negro of the one thing that he may have left--his dignity, 'the question of being a man.' Id. (quoting Police Conduct, Report of the National Advisory Commission on Civil Disorders 303 (1968)). [FN129]. See id. [FN130]. See Mari J. Matsuda, Public Response to Racist Speech: Considering the Victim's Story, 87 Mich. L. Rev. 2320, 2326-35 (1989) (discussing the connection between anti-minority speech and racially biased violence). In this fascinating article, the author rejects an absolute First Amendment position and suggests that formal criminal and administrative sanctions are an appropriate response to racist speech. See id. at 2321. Ms. Matsuda also points out that some state and local governments have taken steps in this direction by enacting anti-hate group legislation and constitutional provisions. See, e.g., Okla. Stat. tit. 21,
S 1301-1306 (1981). [FN131]. See Robert Reiner, The Politics of the Police 203 (1985). [FN132]. Id. [FN133]. Amnesty International, United States of America: Police Brutality and Excessive Force in the New York City Police Department 1 (1996) (detailing incidents of police brutality against minorities in New York). [FN134]. Id. [FN135]. Michael H. Cottman, Report: Cops Antiblack, N.Y. Newsday, Oct. 14, 1992, at 31 (citing Police and Racial Violence study by Medgar Evers College Center for Law and Social Justice). [FN136]. Karins v. Atlantic City, 706 A.2d 706, 720 (N.J. 1998) (holding that an off-duty New Jersey fireman's racial slur at an on-duty black police officer was constitutionally unprotected). [FN137]. See U.S. Const. amend. XIV,
1 ("No state shall . . . deny to any person within its jurisdiction the equal protection of the laws."). [FN138]. Cf. Jerome H. Skolnick, Justice Without Trial: Law Enforcement in Democratic Society 219 (1966) ("All too often writers on the subject (of police harassment) fail to give sufficient consideration to the simple notion that (police) practices must have a differential impact in a stratified and racially constructed society."). [FN139]. I am a Puerto Rican man with many African-American features, such as the texture of my hair and the slightly dark color of my skin. I have lived in New York City all my life and have heard countless stories of police misconduct and harassment against minorities. [FN140]. When I was 22 years old and attending Columbia University in New York, I encountered firsthand just how random and harmful the police's racist attitudes and actions could be, especially towards black men. By the time my four-hour ordeal was over, I had been handcuffed and arrested in front of my school dorm, called "an ignorant black nigger," told that I would always be kept down by police officers, and finally beaten by two white police officers. See Rose Marie Arce, Cops on the Hot Seat, N.Y. Newsday, May 14, 1992, at 23. The reason the two police officers stopped me was because I threw a napkin at a trash can on Broadway and 110th Street and, according to the officers, it did not go into the trash can. See id.; see also Stephanie J. Geosits, Grad Sues NYPD for 17 Million, Columbia Spectator (the newspaper of Columbia University), May 27, 1992, at 1 (detailing my incident involving two white New York City police officers who beat me and taunted me with racial slurs). END OF DOCUMENT