In a widely-reported decision involving controversial facts, the federal Second Circuit Court of Appeals has apparently substantially expanded the circumstances under which a public employer can discharge employees for engaging in off-duty speech.
The case involved Officer Joseph Locurto of the New York Police Department, and Jonathan Walters and Robert Steiner, firefighters with the New York Fire Department. All three were white residents of Broad Channel, a small, predominately white island community in southeast Queens.
Each year, Broad Channel plays host to a loosely-organized Labor Day parade. Local politicians award prizes to floats designated, for example, “prettiest,” “most original,” and “funniest.” In each of the nine years leading up to 1998, the prize for funniest float was awarded to a particular group of individuals who entered floats that often, but not always, featured racial, ethnic, or other stereotypes.
In 1994, for example, this group entered a float entitled “Hasidic Park,” a play on the film “Jurassic Park,” that featured stereotypes of Hasidic Jews living in prehistoric times. The group’s 1996 float, called “Gooks of Hazard,” depicted Asian stereotypes. Another year, the float was entitled “Happy Gays” and made fun of gay men. Steiner and Walters participated in each of these floats, and Locurto in the 1996 and 1997 floats. None of the previous floats generated any controversy or public attention.
For the 1998 Labor Day parade, the group, which included Locurto, Steiner, and Walters, decided to enter a float called “Black To The Future – Broad Channel 2098.” The concept, a play on the movie “Back To The Future,” was to depict how Broad Channel would look in 2098, when it would presumably be more integrated than it is at present. Each of the float participants covered their faces in black lipstick, donned Afro wigs, and accompanied the float along the procession in attire ranging from overalls with no tee shirt underneath to cut-off jeans and ratty tee shirts. The float itself featured two buckets of Kentucky Fried Chicken on the hood of a flatbed truck. One participant (not the three employees) ate a watermelon and at one point threw the remains into the crowd. The float participants engaged in various chants, including, “No justice, no peace,” “This isn’t Johannesburg,” and “We didn’t land on Broad Channel, Broad Channel landed on us.” Steiner and Walters yelled to the crowd, “Crackers, we’re moving in,” and Walters simulated break dancing alongside the float.
Near the end of the procession, and apparently without the others’ knowledge, Walters held onto the truck’s tailgate pretending to be dragged by the truck, and yelled, “Look what they did to our brother in Texas, we would not allow them here.”
When press stories began being aired of the parade, Mayor Rudolph Giuliani was quoted as saying that he would immediately fire any “police officer, firefighter or other City employee involved in this disgusting display of racism.” One day later, after the three employees had been placed on suspension, Giuliani said, “They’re technically suspended, but they’re never getting back into the Police Department or Fire Department unless the Supreme Court of the United States ordered us to take them back.”
Giuliani was quoted as making other statements that the employees would never get their jobs back, all long before any hearing on any discipline had been conducted.
The City eventually fired Locurto, Walters, and Steiner. The three filed a challenge to their discharges in federal court, alleging that their firings violated their free speech rights. The Second Circuit Court of Appeals rejected the lawsuit.
The Court assumed for the sake of its decision that the employees’ participation in the float did in fact relate to a matter of public concern, thus imposing on the City the obligation to make a substantial showing that the speech interfered with its operations. Where the Court parted company with the decisions of other courts was in holding that the City need not prove actual disruption in the workplace resulting from the off-duty speech, and instead that a mere “concern for the potential disruption the activities would cause to NYPD and FDNY” was sufficient to override the employees’ free speech rights.
The Court found that it was sufficient justification for the discipline that the float incident would “engender and perpetuate a public perception of NYPD and FDNY as racially insensitive. The Supreme Court has said that when close working relationships are essential to fulfilling public responsibilities, a wide degree of deference to the employer’s judgment is appropriate.
“Whatever the employees’ intentions, the message their action conveyed was, from the vantage of our nation’s history, sadly unoriginal. It was as obvious on September 10, 1998, as it was after the administrative hearings were held that police officers and firefighters who deliberately don ‘blackface,’ parade through the streets in mocking stereotypes of African-Americans and, in one firefighter’s case, jokingly recreate a recent vicious hate crime against a black man, might well damage the relationship between the NYPD and the FDNY and minority communities.
“The trial court placed great weight on the fact that the threatened disruption was ‘external’ rather than ‘internal.’ The members of the African-American and other minority communities whose reaction to the float the City legitimately took into account cannot properly be characterized as outsiders seeking to heckle the employees into silence. Rather, effective police and fire service presupposes respect for the members of those communities, and the City was permitted to account for this fact in disciplining the employees.”
Locurto v. Giuliani, 2006 WL 1130906 (2nd Cir. 2006).
This article appears in the December 2006 issue