Public Servants and Free Speech

It is worth noting that the respondent member of the Stamford board of finance in the matter covered in the preceding blog post 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. The decision on his motion for a preliminary injunction can be found here.

Legislative Immunity
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.

Ethics Terms Constitutionally Vague?
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 the Stamford code), 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.

Protected Speech vs. Important Governmental Interest
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.

Public Servants and Free Speech
Then (on p. 18) the court turns to the situation of public servants:

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.

The court applied these tests to the present case, but then concluded more generally, and of more importance to us (on p. 21):

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.

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.

Robert Wechsler
Director of Research-Retired, City Ethics

---