© Provided by Washington Examiner A recent federal court decision suggests that judges are finally getting tough on government employers who punish employees for supporting the "wrong" political views in their lives outside work.
Though the First Amendment bars the government from punishing speech solely because of its political point of view, the legal doctrine of qualified immunity shields officials from liability for violations where the law is murky. As a result, employees can have a difficult time holding their supervisors accountable for retaliation for their speech outside work.
But a recent case suggests that courts are getting impatient with the increasingly aggressive efforts by some government officials to punish speech deemed insufficiently supportive of their political agenda.
Last month, Judge Edward R. Korman denied a request for qualified immunity from several government officials at one of New York's social service agencies who tried to fire an administrative law judge over his off-hours political speech. Korman's reasoning makes it clear that supervisors who cavalierly discipline public employees for political speech outside of work hours can be personally liable for damages, including back pay, lost promotions, reputational harm, and emotional distress.
In 2015, Salvatore Davi was suspended and demoted from his position as an administrative law judge as the result of a private Facebook exchange concerning welfare policy. Davi had commented on a Daily Kos article that argued for expanding welfare programs. Davi argued that "there should most certainly be a safety net, but it should be of limited duration and designed to get people back to self-sufficiency."
A former law school classmate took issue with his comments. The argument turned somewhat nasty, and after it was over, the classmate sent Davi's employer a complaint requesting that it investigate Davi for bias against welfare recipients. The former classmate also indicated that she was sending a copy of the complaint to a legal aid group that represented welfare applicants - so they could challenge Davi's authority to preside over future hearings.
Officials investigated the complaint but found no evidence of bias in any of the cases that Davi heard during his five years at the agency. In fact, Davi had ruled in favor of granting welfare benefits in 95% of the cases that came before him, so potential welfare applicants were unlikely to disrupt the office by demanding his recusal.
Inexplicably, officials at the agency ignored the findings of their thorough investigation and tried to fire Davi for his comments. One of the officials went so far as to say he thought it was OK to fire anyone with Davi's views whether or not they were voiced.
Davi has been fighting for his job in court ever since. He argued that the agency was free to investigate his record for bias, but under the First Amendment, it could not punish him solely for his political speech.
Korman's stinging opinion rebuked the officials who targeted Davi. He rightly identified Davi's Facebook comments as speech about an important issue of public concern, "which is among the most highly protected speech in our constitutional order." Finding no legitimate grounds to terminate Davi, Korman reasoned that there was evidence that officials sought to fire him "because he held disfavored views," which the First Amendment clearly prohibits.
Ordinarily, qualified immunity protects state officers from personal liability when there is no "clearly established law" prohibiting their conduct. That standard can be highly deferential. Unless a court has heard a nearly identical case, officers are often immune from liability.
In a welcome surprise, Korman denied the officials' request for qualified immunity after finding significant evidence suggesting that they may have deliberately retaliated against Davi for his constitutionally protected speech. Korman's opinion recognized that a trier of fact could conclude that the officials willfully violated Davi's First Amendment rights.
Korman hit on the central concern shared by many legal scholars of all political outlooks about the doctrine of qualified immunity. Too often, the doctrine is not used to protect officers who must make weighty decisions in ambiguous circumstances, but rather, it is misused to strip ordinary citizens of any means of legal redress in cases in which state officers have recklessly and intentionally violated their constitutional rights.
Zane Lucow is the director of legal and public affairs at the Center for Individual Rights, which represented Davi in his lawsuit.
Tags: Opinion, Op-Eds, First Amendment, Free Speech, Censorship, Court, Law, Constitution
Original Author: Zane Lucow
Original Location: How qualified immunity helps employers get away with silencing employee speech