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August 25, 2010

A public employee's freedom of speech with respect to statements made to the press

A public employee's freedom of speech with respect to statements made to the pressHarman v. City of New York, CA2, 140 F.3d 111.

Two New York City agencies, the Human Resources Administration [HRA] and the Administration for Children’s Services [ACS] adopted policies [Executive Orders 101 and 641] requiring employees to obtain agency permission before speaking to the media concerning any policies or activities of the agency.

The City claimed that the policies were necessary to (1) meet the agencies’ obligations under federal and state law to protect the confidentiality of reports and information relating to children, families, and other individuals served by the agencies; and promote the effective operation of the organizations.

Rosalie Harman and other employees challenged these policies on the grounds that they violated the First Amendment rights of the workers. A federal District Court judge agreed and struck down the policy. The Second Circuit Court of Appeals [New York] upheld the District Court’s ruling.

The case began after Harman, a CWA employee, was suspended because of her statements to ABC News concerning the death of a six-year-old, Elisa Izquierdo. It was alleged that the child was beaten to death by her mother. The child’s death became the subject of intense media scrutiny when it was revealed that CWA had received numerous reports about the child before her death.

The court found that Harman had been disciplined for stating to the press that “the workers who are considered the best workers are the ones who seem to be able to move cases out quickly,” and, “there are lots of fatalities the press doesn’t know anything about.”

In affirming the District Court’s ruling that the gag orders were unconstitutional, the Circuit Court said:

1. Individuals do not relinquish their First Amendment rights by accepting employment with the government.

2. The Supreme Court has recognized that the government “may impose restraints on the job-related speech of public employees that would be plainly unconstitutional if applied to the public at large. [U.S. v National Treasury Employees Union, 513 US 454].

3. In evaluating the validity of a restraint on government employee speech, courts must “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” [Matter of Pickering, 391 US at 568].

4. Pickering’s balancing test applies only when the employee speaks “as a citizen upon matters of public concern” rather than “as an employee upon matters only of personal interest” [Connick v Myers, 461 US 138].

5. Where its employee speaks on matters of public concern, the government bears the burden of justifying any adverse employment action [Rankin v McPherson, 483 US 378].

It was undisputed that many federal and state laws require ACS and HRA records, reports, and information relating to specific children or families, be kept confidential. In fact, disclosure of statutorily confidential information, or failure to take reasonable security precautions that leads to such disclosure, is a misdemeanor under state social service provisions.

Nevertheless, the Circuit Court concluded that the gag orders clearly aim at speech that is of considerable importance to the public. “Indeed,” the opinion notes, “discussion regarding current government policies and activities is perhaps the paradigmatic matter[s] of public concern.”

Harman’s speech, according to the decision, concerned the priorities and effectiveness of the CWA, and obviously is of interest to the public whom the agency serves. Therefore, the city bears the burden of demonstrating that the challenged policies are necessary to the efficient operation of the agencies.

Among the justifications advanced by the city was its assertion “that the agencies will not prohibit employees from commenting on the non-confidential operations of the agency once they have ensured that the proposed speech is consistent with the efficient and effective operation of the agency.” However, such conditions do not satisfy free speech requirements, said the Court, because “even according to this interpretation, the regulations clearly interfere with employees’ ability to communicate their views to the media.”

The kind of approval procedure mandated by the city is generally disfavored under First Amendment law because it “chills potential speech before it happens”; it allows the agencies to determine in advance what kind of speech will harm agency operations instead of punishing disruptive remarks after their effect has been felt. For this reason, the court decided, the regulations run afoul of the general presumption against prior restraint on speech.

The Circuit Court affirmed District Court’s decision, ruling that Executive Orders 101 and 641 were unconstitutional infringements on the First Amendment rights of city employees.

The full text of the opinion is posted at:
http://nypublicpersonnellawarchives.blogspot.com/

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