Public Servants and Free Speech
It is worth noting that the respondent member of the Stamford board of
finance in the matter covered in <a href="http://www.cityethics.org/content/not-withdrawing-responsible-way-deal-…; target="”_blank”">the
preceding blog post</a> raised both a
legislative immunity and a First Amendment free speech defense in his federal court
complaint unsuccessfully seeking an injunction against his ethics proceeding. <a href="http://docs.justia.com/cases/federal/district-courts/connecticut/ctdce/…; target="”_blank”">The
decision
on his motion for a preliminary injunction can be found here</a>.<br>
<br>
<b>Legislative Immunity</b><br>
The District Court's discussion of the legislative immunity defense
says nothing new. Primarily, the court questioned whether what was
being considered by the ethics board was in the sphere of the finance
board member's sphere of legislative duties. What is different here is
that other such cases I've come across involve a council member, whose
work everyone would consider primarily legislative. The fact that a
finance board member's defense can be taken seriously, even if easily
dismissed, shows that this defense can be raised by other local
government officials.<br>
<br>
<b>Ethics Terms Constitutionally Vague?</b><br>
On the First Amendment issue, the respondent argues that the ethics
code is constitutionally vague because it uses such terms as “personal
. . . and political activities,” “attempt to influence,” “interest,” or
“grant” (as a verb, as in give). These terms, especially "interest,"
which is usually defined (but, for some reason, not in <a href="http://www.cityofstamford.org/filestorage/25/64/1168/2990/122090/Codeof…; target="”_blank”">the
Stamford
code</a>), commonly appear in ethics codes. This is the first time I've seen such basic ethics terms called constitutionally vague. The court didn't buy the argument.<br>
<br>
<b>Protected Speech vs. Important Governmental Interest</b><br>
The finance board member then argues that the ethics code regulates protected speech. His
supposedly protected speech is his comments on the termination of a city
employee. The court (on p. 16) cites the Turner Broadcasting case,
saying that "'content neutral laws impact First Amendment rights
incidentally," Turner Broadcasting System Inc. v. FCC, 512 U.S. 622
(1994), and are therefore subject to intermediate scrutiny which
requires such a regulation to 'further an important or substantial
governmental interest unrelated to the suppression of free speech,
provided the incidental restrictions [do] not burden substantially more
speech than is necessary to further those interests.' Turner
Broadcasting System, Inc. v. FCC, 520 U.S. 180, 186 (1997)." The court
says more along these lines.<br>
<br>
<b>Public Servants and Free Speech</b><br>
Then (on p. 18) the court turns to the situation of public servants:<ul>
In Garcetti v. Ceballos, ... 547 U.S. 410 (2006) ... the Supreme Court
held that “when public employees make statements pursuant to their
official duties, the employees are not speaking as citizens for First
Amendment purposes, and the Constitution does not insulate their
communications from employer discipline.” Id. At 421. A court must
therefore first determine whether a public employee is speaking
pursuant to his official duties and therefore not as a citizen, and
secondly if it is found that the employee is not speaking pursuant to
official duties, whether that employee’s speech addresses a matter of
public concern. ... In Garcetti, the Supreme Court defined speech made
“pursuant to” a public employee’s job duties as “speech that owes its
existence to a public employee’s professional responsibilities.” 547
U.S. at 421.</ul>
The court applied these tests to the present case, but then concluded
more generally, and of more importance to us (on p. 21):<ul>
Tarzia is unlikely to succeed as any regulation of his speech is
necessary to serve a compelling state interest and is narrowly drawn to
achieve that end. In particular, Tarzia acknowledges that the
deterrence of corruption of public officials is a compelling state
interest. Further, the Court finds that for the purposes of this
motion, that the Plaintiff is unlikely to demonstrate that the Town’s
Code of Ethics is not sufficiently narrowly tailored to survive strict
scrutiny.</ul>
This is a heartening view of the relationship between government ethics
and the First Amendment. The First Amendment was never intended to
protect officials in the way it was intended to protect citizens. And
it was never intended to be absolute. The goals of government ethics
require that speech be limited. Elected officials especially need to
act and speak in a responsible manner, so as not to undermine the
public's trust in government by acting or speaking in their personal
interest rather than in the public interest. Government ethics, like
the First Amendment, is intended to protect citizens.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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