"On June 24, federal Judge John Sprizzo of the Southern District of New York issued an extremely controversial opinion in the case of Locurto v. Giuliani. The judge ruled in favor of three men - two firefighters and a police officer, all employed by the City of New York - who rode on a racially offensive float in the Broad Channel, Queens Labor Day Parade. The three men were off duty at the time.
After the incident came to light, then-Mayor Rudolph Giuliani announced that "any police officer, firefighter, or other city employee" involved in the Labor Day Parade would be terminated.
Subsequently, the three men were fired. In response, they sued the City and various City officials, claiming to be victims of retaliation for their exercise of free speech.
After a trial, Judge Sprizzo, sitting without a jury, concluded that the City had violated the First Amendment by firing the plaintiffs for the content of their speech. The result may be that three racists rejoin the ranks of New York's finest and New York's bravest.
But it doesn't have to be that way. The three men's behavior was more than offensive. It also may have evidenced an unfitness to serve as firefighters and police officers, duty-bound to serve African-American citizens. Thus, while the plaintiffs may deserve compensation for the infringement of their rights, they should not be reinstated.
The Float and the Three Men's Conduct
The float in question was entitled "Black to the Future: Broad Channel 2098." Meant to win the prize for funniest float in the parade, it exhibited a strong antipathy for racial integration - particularly, the integration of Broad Channel, Queens.
The float consisted of a flatbed truck on top of which the plaintiffs sat with a large bucket of fried chicken and watermelons. The men wore blackface and Afro wigs made of mops, and they mockingly engaged in various civil rights chants, including "No justice, no peace."
Bringing the display to a new low, one of the plaintiffs announced, "Look what they did to our brother in Texas, we would not allow them here...." and proceeded to hang by his hands from the back of the truck. In carrying out this stunt, he was manifestly parodying the dragging murder of James Byrd, Jr. - a black man whom three white men killed in Jasper, Texas. To the cheers of spectators, the firefighter repeated his display."
Here is more of Prof. Colb's analysis:
"In his opinion, Judge Sprizzo reiterated a number of times that the government may sometimes terminate employees whose continued employment will cause disruption to the municipality in its efforts to carry out functions for which the employees were hired.
Thus, the City could have legitimately fired the plaintiffs because of the community's likely reaction to the racist float - interference with the police or fire departments' missions, morale, or community recruitment efforts.
If disruption is reasonably predicted, Judge Sprizzo explained, then a court will perform a balancing test in which it determines whether the potential disruption is sufficient to outweigh the employee's interest in expressing herself on a matter of public concern.
As the judge acknowledged, the government has greater power, for First Amendment purposes, when it acts as an employer than when it acts as a sovereign (or regulator of behavior).
If you work for the Mayor and call him a fascist, for example, he may be able to fire you, even though private citizens can call him a fascist without fear of reprisal.
In spite of this distinction between government-as-employer and government-as-sovereign, however, we retain robust free speech rights against government censorship, even when that censorship takes the form of employment sanctions.
Thus, if we speak on a matter of public concern, and if our job penalty is motivated by the content of our speech, rather than by worries about disruption, then the government violates our First Amendment liberties by penalizing us.
Judge Sprizzo ultimately concluded that the City, in firing the plaintiffs, did not act out of a concern about public disruption resulting from the float but rather, in an effort to silence a racist message. He therefore found that the firings violated the First Amendment.
The judge cited much evidence to support his factual conclusion that it was the content rather than the functional consequences of the plaintiffs' speech that motivated their discharge. This included the fact that the Mayor's office supported reinstating four police officers who had killed a West African immigrant named Amadou Diallo, despite the considerable public disruption caused by that killing.
Judge Sprizzo thus decided that it was the message of the racist float, and not the potential impact on public service, that had motivated the City."
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