Pain and Suffering Damages Will Lead to Pain and Suffering
David Sheehan/Saeed R Sehizadeh, Spammer-At-Law

Is "Hot Air" a Matter of Public Concern?

A Brooklyn prosecutor, Robert Reuland, wanted to hype his upcoming book.  Like most New York lawyers, he was prone to bullshit overstatement.  In an interview with New York magazine, he said of his burrough:

Brooklyn is the best place to be a homicide prosecutor [because] we've got more dead bodies per square inch than anyplace else.

His superiors got upset with this statement - first because it was false, and second because it made it seem like the lawyer was more interested in trying cases (for his own glory) than he was with the harm murder victims and their families suffered.  So they demoted him.

Was that overly harsh?  Sure.  It was a the type of silly overreaction government bureacrauts have every day.  But Reuland turned his demotion into a constitutional case.  And a split panel of the Second Circuit agreed with him in Reuland v. Hynes (here).

Brief summary of the law.
Government employees, unlike you and me, have limited First Amendment rights when discussing job-related topics.  Generally, a government employee's speech is free only when he is talking about a matter of public concern.  Courts will sift through the speech asking whether it was a matter of public, or private concern.  It's a sticky distinction, but an example helps clear the mud.

Imagine a prosecutor is required to work long hours but isn't given a raise.  He writes a letter to the editor complaining about his situation.  He doesn't note that his office is understaffed.  He just complains.  Now imagine a different prosecutor writes a letter to the editor noting that he was passed over for promotion because he was black - and that his supervisor has passed over several qualified black applicants.

Can you see the difference between complaining about a personal slight, and informing the public about a matter of public concern?

Assuming the employee's speech is a matter of public concern, the court will balance, under two leading Supreme Court cases (Pickering and Connick), the interests of the employee in commenting upon matters of public concern against the interest of the government/employer, in promoting the efficiency of the workplace.  In other words, even public-concern speech might lead to discipline if the speech prevents the government agency from getting its job done.

In reality, under Pickering and Connick, courts tend to ask this question: Was the speech more valuable than the harm it caused?  Thus, a police officer who discusses rampant corruption in his police department will likely be protected under the First Amendment, even if his speech causes substantial dispution.  In government-employee cases, speech is free only if it is valuable.

The split-panel's decision.
The split panel concluded that homicide rates are matters of public concern.  The court also held that the speaker's motive for speaking does not resolve the public-concern issue.  Thus, the fact that Reuland made his (false) statements only because he wanted to hype his book doesn't mean his speech is a matter of personal, rather than private concern.  [Ed's note: This is an important, if somewhat small, doctrinal development, and worth further exploration by a law student looking to write a law review article.]

Thus, Reuland's speech would be protected unless it was too disputive. Unfortunately, the panel does not apply Pickering balancing, as the defendant's trial lawyers waived the issue at trial.  (!)  Thus, given that murder-rate-related speech was a matter of public concern, the panel held that Reuland's First Amendment rights were violated when his supervisor punished him.

The dissent.
Judge Winter's dissent was powerful, and persuasive.  Although several pages long, its first sentence summarizes it brilliantly:

A prosecutor's statement to a magazine about homicide rates within his jurisdiction is not protected by the First Amendment when it was admittedly false, admittedly made without any belief of a basis in fact, and made to promote sales of the prosecutor’s novel.

The dissent should have carried the day.  Although murder rates are a matter of public concern, untruthful crime statistics is worthless speech.  The public did not benefit or learn anything from Reuland's speech.  Reuland was simply blowing hot air in an attempt to boost his book sales.

The First Amendment was not vindicated in Reuland v. Hynes.  Instead, the split panel allowed a lawyer who used his official office to hype his book, to reap a financial windfall.