Last week, a federal judge found that New York City violated the First Amendment when it fired police officer Joseph Locurto and firefighters Robert Steiner and Jonathan Walters for their off‐duty participation in a racist parade float. The judge was right, but not for the reasons trumpeted in the media.
Many editorials about the case have swallowed the ACLU’s line, portraying the ruling as a victory for freedom of speech over government suppression of racist ideas. The ACLU, which represented the “Parade 3,” argues that the government cannot punish its employees for expressing their views, however repugnant, on their own time. By extension, the government also may not condition hiring someone on whether that person has expressed racist views.
However, in the case of police officers, and perhaps with firefighters too, there is a strong counterargument: that the government can prohibit the employment of known racists for such jobs, not to punish them for their views — which would violate the First Amendment — but because they are simply not qualified for the job. Few would argue with the proposition that is important that African‐American victims of crimes and criminal suspects think that police officers treat them fairly. It is also important that African Americans feel assured that if their house or office is on fire that the fire department will respond with the same alacrity as it would if the property was owned and occupied by whites. Hiring or retaining police officers or firefighters publicly known to be racist could undermine minority confidence in their departments, especially the police department, given its history of tension with the African‐American community. Publicly expressing one’s contempt for minorities, then, arguably renders one unqualified for the job.
Moreover, it’s not just perception that’s at issue, but also a police officer or firefighter’s performance in the field. The First Amendment does not bar the government from using speech as evidence on non‐speech issues, and New York City could reasonably believe that if a police officer or firefighter expresses racist views, then this individual is more likely than his peers to not treat minorities fairly on the job.
Imagine if a reputable private company provided police or fire services for New York. It seems highly unlikely that the company would hire known bigots, because compared to the average successful applicant, such individuals will be reasonably presumed to be more likely to have trouble working with people of other races. New York City arguably deserves similar flexibility when it acts as an employer.
The judge in the Broad Channel case nevertheless was correct because New York City did not in fact fire the Parade 3 for the reasons suggested above. The court found that the decision to fire the men was made not by the police and fire commissioners, concerned for the effectiveness of their departments, but by Mayor Rudolph Guiliani, before he even knew which city employees, if any, were involved with the racist float. After news reports about the float trickled in, Guiliani told the New York Times that “any police officer, firefighter or other city employee involved in this disgusting display of racism should be removed from positions of responsibility immediately. … They will be fired.” He later made good on that threat, and while the decision may in retrospect have turned out to be reasonable because the Parade 3 turned out to be police officers and firefighters, Guiliani was apparently equally eager to fire a city‐employed janitors, accountants, or sanitation workers, even though none of them have jobs where their views on race relations are relevant to their qualifications.
Moreover, city lawyers did not focus on the qualifications argument, instead primarily arguing that the terminations were justified to avoid civil unrest and improve recruiting of minorities for the police and fire departments. The judge found, though, that concern for civil unrest was pretextual: no such unrest had occurred after news of the float became public. Accepting the recruitment argument, meanwhile, would suggest that all city agencies that actively recruit minorities could always discriminate in employment against known racists, even if they would have no contact whatsoever with the public, a policy that almost certainly violates the First Amendment.
In the end, the judge got it right. But the issues involved were more complicated than knee‐jerk civil libertarians let on. Government acting as an employer should be careful not to infringe the rights of its workers. But it also should have the authority to ensure that its workers’ off duty activities don’t impinge on their ability to get the job done right