pageok
pageok
pageok
Firing Cops for Bad Speech:

So today's Philadelphia Inquirer brings us this news:

Five Philadelphia police officers were fired yesterday for alleged misconduct, including two incidents in which officers were accused of using racial slurs.

Among them was William Thrasher, 24, who allegedly called African Americans in his 22d District "animals" and worse.

Thrasher, who had been on the force for two years, was quoted by a Temple University journalism student who was riding with him on patrol for a class assignment. . . . During the ride-along, Thrasher allegedly referred to the violence in his predominantly African American district as "typical n- s-" or "TNS."

Officers Donald Swan and Anthony Ferriola were also dismissed on allegations that they used racial epithets on the job. The remarks allegedly were made toward students while the two responded to a fight March 13 inside Audenried High School in South Philadelphia.

We've come to a pretty unfortunate place when the words "First Amendment" do not even show up in an article like this. Putting aside consideration of what kind of jackass would say stuff like that when he's got a journalism student in the back seat for a ride-along, firing a cop because he said nasty things to a ride-along journalist seems fairly outrageous to me — without any showing that his conduct on the job was in any way deficient.

[And in a nice Kafka-esque touch, given the questions that were raised about the accuracy of the journalism student's account of Thrasher's language, "Chris Harper, the associate journalism professor at Temple who edited McDonald's article, said the commissioner's action vindicated the accuracy of McDonald's work." Nice! The Commissioner fires Thrasher because of the contents of the article, and that shows that the article was accurate!]

[Update: Well, I must say I'm very, very surprised at the comments here. The vast majority of VC readers (or at least VC commenters) don't seem to find any First Amendment issue when the government of Philadelphia fires a policeman for remarks that he made in a conversation with a journalist. I'm stupefied by that, to be candid. That's what I mean when I said "we've come to a pretty unfortunate place" -- the First Amendment, which one would think would quite obviously protect a government employee's speech, has simply lost much of its power, and most people seem to take it for granted that it doesn't apply here. So presumably if a cop were to say "Man, I hate those freaking Democrats," or a state college professor said "Israelis (or Palestinians) are responsible for everything that's gone wrong in the Middle East," or a public school teacher were to say "Gay marriage is an abomination" or "Jews are really pushy, no?" -- no problems giving them the axe. Hugo Black is turning over in his grave (Jefferson, too). Silly me, but I thought the First Amendment meant that the state couldn't punish you for the content of your speech without a truly compelling reason for doing so. I know that the Supreme Court's not been with me on this - but I really did think that most of the VC readers would be.]

Gabriel McCall (mail):
I honestly don't see a first amendment issue here. The government is not saying that these officers may not say these things; it's simply saying it's choosing not to employ those who do.

There's no constitutional right to a government paycheck.
4.24.2009 9:52am
Downfall:
The "animals" part seems like a dubious ground. I have no doubt that the African Americans in his district, like all other human beings ever, are in fact animals.
4.24.2009 9:59am
TerrencePhilip:
We've come to a pretty unfortunate place when the words "First Amendment" do not even show up in an article like this.

And why would that be? There was no First Amendment violation, what is the purpose of going into it? Column space ain't cheap.

I do agree with you on the irony of a journalism professor saying that reporting work has been "vindicated" by, of all things, a bureaucrat's firing decision, flashily announced to the press with the obvious intent of shoring up his own position against possible charges of poor leadership.
4.24.2009 10:00am
Alan Gunn (mail):
I'm about as strong a free-speech advocate as anybody I know. But arguing that the first amendment prevents firing a police officer, whose job requires dealing with all sorts of people, for using this kind of language in public seems absurd. I don't have any first-hand experience with the police, but I can tell you that this kind of talk in the army, which seems somewhat similar in this respect, will kill your career.
4.24.2009 10:02am
ruuffles (mail) (www):
And if it's a black cop talking about "typical white crackers," would you feel the same way?
4.24.2009 10:02am
Alex R:
Is the employer of these police punishing them for their *speech*, or for their *on the job behavior*? I believe that despite the First Amendment, private employers can fire people even for off-the-job speech; the fact that the employer here is the government makes this more questionable. However, are there any 1st amendment cases that indicate that government employers may not fire employees for *on the job* speech?

What's more, if you don't think that on-duty use of racial epithets by a police officer could, in and of itself, be considered less than desirable "conduct on the job", well, I'll just say that I disagree. (I believe that the perception of police officers as unbiased enforcers of the law is critical to how well the communities they police will receive them, which in turn will affect their effectiveness.)
4.24.2009 10:03am
Employment Lawer:
If we assume (and, given the facts, this might be a dubious assumption) that the cop did in fact use this racist language, there's no First Amendment issue. Rather, this is an employment law issue. This kind of racist language exposes the city to civil rights lawsuits and, worse, suggests a racist attitude that might also expose the city to liability. I'd say that not being racist is a bona fide occupational qualification for a cop. As a city leader, I can't take that liability risk.
4.24.2009 10:04am
PatHMV (mail) (www):
Not outrageous in the slightest to me, and I'm normally pretty hard line against "PC" crap. The cops conduct on the job IS deficient if they are using racial epithets to describe the citizens with whom they must interact on a daily basis. A cop's job includes treating politely and civilly all with whom they come in contact. It also includes behaving appropriately in interviews with reporters. Once the reporter printed those in the paper, do you really believe the cops would be effective working in a black neighborhood?

This is a good firing, and I don't see enough of a First Amendment aspect to warrant even mentioning, frankly. Government-as-employer is pretty obvious here.
4.24.2009 10:04am
George Lyon (mail):
I have sympathy for the cops who have to deal with people who act like wild animals day in and day out, but the department has a legitimate interest in its officers not using racial slurs on the job even in their interaction with these "animals." In my opinion the officers deserve a fair hearing. Note here in Washington, DC some capital police officers have gotten in hot water over the contents of some sexist facebook pages. This seems at least one step removed from interactions on the street.
4.24.2009 10:11am
Kenvee:
I'd say he was fired for incompetence. What kind of absolute idiot would say those sorts of things with a journalism student doing a ride-along?! Even if it had no impact on his job at all, I'd say that shows stupidity I don't want in my cops. :p
4.24.2009 10:13am
Anderson (mail):
But arguing that the first amendment prevents firing a police officer, whose job requires dealing with all sorts of people, for using this kind of language in public seems absurd.

Put me on that bandwagon as well.

I mean, what's the city to do? Wait until he beats one of the "animals" to death, and then let the evidence of his predisposition against them come out at trial?

Hypo: not a cop, but a public-school teacher, refers to black students as "typical niggers" and "animals." Protected speech, or firing offense? Does it matter whether it's your kid he's talking about?
4.24.2009 10:19am
Hamlet (mail):
@Gabriel (first reply).

That was Justice Holmes's view on this issue, but it never prevailed. There's a long ling of Supreme Court doctrine protecting government employees who are punished for reasons that violate the First Amendment.

That said, he would probably lose here, as this officer's speech was not discourse about any matter of public interest, and the government can probably show an interest in firing him.
4.24.2009 10:20am
resh (mail):
Perspective might help. Switch the cop to a judge. Same employer, more or less. Same clients, more or less. Same duty, more or less. Same responsibilty and civic expectation, more or less.

Allowing the above, would anyone object to the firing of His Honor after eyeballing the scenic courtroom and then whispering to the court stenographer below, "Oh, look. it's the typical n...ers."
4.24.2009 10:21am
Strict:

We've come to a pretty unfortunate place when the words "First Amendment" do not even show up in an article like this



without any showing that his conduct on the job was in any way deficient.



A cop calls a child "nigger," in a school building, and you don't think that this is deficient in any way?

Wow. Keep up the good work, Professor.

Which case was it that stood for the proposition that verbal abuse of children by government agents is protected by the First Amendment? Thanks in advance for the cite.
4.24.2009 10:23am
AF:
The case law is on the police department's side.

The First Amendment is not entirely irrelevant but under Pickering a police department's interest in not being seen as racist outweighs a police officer's right to say racist things while remaining employed as a police officer.
4.24.2009 10:26am
Hamlet (mail):
@Alex R:
See for example Rankin v. McPherson, 483 U.S. 378 (holding that a government employee could not be fired for saying in the office that he hoped Reagan would be shot again)
4.24.2009 10:26am
Curt Fischer:
Add me to the litany of people saying they don't see anything wrong here.
4.24.2009 10:26am
Guesty (mail):
What about the potential liability of keeping someone on the force with documented racial animus?

If you have allegations of police brutality, this article, and a 1983 action, how do you think the department is going to fare?

I'd fire him in a second.
4.24.2009 10:27am
Curt Fischer:
And by "here", I mean, "with firing the cops if the story as reported to us is accurate."
4.24.2009 10:28am
Pete Freans (mail):
The article continues, quoting a Daily News article, where Philadelphia Police Commissioner Ramsey states: "I take this very, very seriously. It's not supposed to happen. You can't serve people you don't respect."

Disrespect is a two-way highway however: 5 Philadelphia police officers have been killed the past year. Statistics on officers being fired-upon go largely unreported in the media but have become common practice in the very neighborhoods that the fired police officers patrol.

I am not justifying their comments, but insensitive comments alone do not justify termination. Retraining through HR sensitivity classes is the proper punishment, along with temporary suspension without pay. The words that are uttered by defendants toward law enforcement would make even a journalist cringe.
4.24.2009 10:29am
Anderson (mail):
Allowing the above, would anyone object to the firing of His Honor after eyeballing the scenic courtroom and then whispering to the court stenographer below, "Oh, look. it's the typical n...ers."

You have just imagined Judge Harold Cox.
4.24.2009 10:34am
John R. Mayne (mail):
Wow. I agree with everyone else that this is totally justified, if the allegations are true. I have no particular reason to think that they are not.

The use of racial epithets in public makes it much, much harder for other cops to do their job right. The view of crime victims as sub-human can't help.

I'm not saying that some race-based commentary wouldn't be protected. But the people who want to be protected from violent criminals deserve to be thought of as human. And the police agency can well enforce it.

Perpetuating a continuing conflict against a community rather than against the criminals in that community ought to get you fired.

Finally, the j-school prof's statement doesn't seem Kafkaesque at all. The paper assumed that the police commission did more than read the paper to make their findings. I don't think that's an unreasonable assumption.
4.24.2009 10:34am
PubliusFL:
Alex R: I believe that the perception of police officers as unbiased enforcers of the law is critical to how well the communities they police will receive them, which in turn will affect their effectiveness.

AF: The First Amendment is not entirely irrelevant but under Pickering a police department's interest in not being seen as racist outweighs a police officer's right to say racist things while remaining employed as a police officer.

That makes sense, but on the other hand, what if the department determines that in some communities the race of police officers is "critical to how well the communities they police will receive them," and officers of the wrong race will be "seen as racist" due to deeply ingrained suspicion of police officers and their motives in those communities. Would that entitle the department to hire only police officers of a certain race? If these concerns outweigh the 1st Amendment rights of police officers, why wouldn't they outweigh the equal protection rights of police officers?
4.24.2009 10:34am
tsotha:
I would be fired in a heartbeat for a comment like that, and I don't have any contact with the public. Why should a cop be different?
4.24.2009 10:35am
Anderson (mail):
Disrespect is a two-way highway however: 5 Philadelphia police officers have been killed the past year.

Yes, those citizen-murderers should not be on the police force, either.
4.24.2009 10:35am
Curt Fischer:

Disrespect is a two-way highway however: 5 Philadelphia police officers have been killed the past year.


The ex-police officers will still be free to go into their old haunts and do all the disrespecting they want. The only thing that has changed is that now they won't be getting paid by the citizenry to do it. Whether its shooting guns at cops, or whether its spouting off offensive epithets that undermine the ability to serve and protect, disrespect needn't be something the government pays people to do.
4.24.2009 10:37am
tsotha:
Incidentally, this kind of thing is why it's hard to consider free speech a defining attribute of American culture. Everyone knows what you're allowed to say and what you're not allowed to say. You can break the rules, but only if you don't need a job.
4.24.2009 10:39am
Caliban Darklock (www):
I tend to think police officers in this country do a very difficult, dangerous, and thankless job under horrific conditions for unreasonably low pay, and everyone hates them for it.

If that makes them racist, maybe that's okay. I don't think there is or should be any law against being a racist. There is - and should be - a law against letting racism drive and direct your decisions as a representative of the government, but that's not the same thing.

There's really not enough compassion or understanding out there for police officers. Every day, when they go to work, they may die. For no good reason. I appreciate the hell out of that, and it offends me that other people don't. If that means they have to say "nigger" now and then, just to get through the day, so be it.
4.24.2009 10:40am
Strict:

The words that are uttered by defendants toward law enforcement would make even a journalist cringe.


Pete,

You raise a good point. I personally respect most police officers. [I used to work for an NYPD officer, too.] But it's not my job or civic duty to show respect. I am not paid to serve and protect police officers. Officers must be held to a higher standard. A cop calling a schoolkid "nigger" is far worse than a schoolkid calling a cop "pig."
4.24.2009 10:40am
AF:
If these concerns outweigh the 1st Amendment rights of police officers, why wouldn't they outweigh the equal protection rights of police officers?

An interesting question. As a matter of doctrine, government employees have weaker First Amendment rights than other citizens, e.g. Pickering, whereas they have the same equal protection rights, e.g. Adarand.

As a matter of principle, the right to say whatever you want while remaining employed by the government is less compelling than the right not to be discriminated against by the government on the basis of race.
4.24.2009 10:44am
Strict:

Would that entitle the department to hire only police officers of a certain race?


I think race-based hiring in police departments can sometimes be justified. If a neighborhood is 80% Hmong, and none of your cops can speak a Hmong dialect, how effective is your force going to be in that neighborhood? How could the force possibly do a good job?

An all-black force may not command a lot of respect in an all-white neighborhood, and vice versa.
4.24.2009 10:46am
PubliusFL:
AF: That makes sense too. Thanks.
4.24.2009 10:48am
gerbilsbite:
Preventing the appearance of partiality and impropriety, and all that jazz...If their conduct breaches the requirements for on-the-job comportment, what's the problem? Not like they had tenure--their on-the-job speech is not particularly valuable except in their capacities as the "voice of authority."

Caliban: that has to be the most historically ignorant thing I've read here in months. Look up Fred Hampton, Rodney King, Tulia.... Thankless job or not, the job would get much, much, MUCH more difficult if entire segments of the population feel they cannot trust law enforcement to treat them without regards to race.
4.24.2009 10:50am
PubliusFL:
Strict: If a neighborhood is 80% Hmong, and none of your cops can speak a Hmong dialect, how effective is your force going to be in that neighborhood? How could the force possibly do a good job?

Interestingly, most of the people I know who speak Japanese are not ethnically Japanese. Hiring people with certain language skills can certainly be valid, even if the people who speak a certain language are more likely to be of a certain race or ethnicity. Using race or ethnicity as a proxy for language skills, however, won't fly.
4.24.2009 10:51am
tsotha:
If a neighborhood is 80% Hmong, and none of your cops can speak a Hmong dialect, how effective is your force going to be in that neighborhood? How could the force possibly do a good job?

That's not a question of race, but of skill. Presumably officers of other races could learn to speak Hmong.
4.24.2009 10:52am
tsotha:
Damn you Publius.
4.24.2009 10:53am
Philistine (mail):

[And in a nice Kafka-esque touch, given the questions that were raised about the accuracy of the journalism student's account of Thrasher's language, "Chris Harper, the associate journalism professor at Temple who edited McDonald's article, said the commissioner's action vindicated the accuracy of McDonald's work." Nice! The Commissioner fires Thrasher because of the contents of the article, and that shows that the article was accurate!]



That didn't really seem like a problem to me. It seemed pretty clear that Harper was talking about the fact that the actual police investigation, which led to the firing, was what confirmed the accuracy of the article. He was quoted as saying:

"A journalist did her job," Harper said. "She reported a story. That story was investigated by the Police Department."
4.24.2009 10:55am
Brett Bellmore:

what kind of jackass would say stuff like that when he's got a journalism student in the back seat for a ride-along


A jackass who's watched the show "Cops", and assumes that the behavior they saw on it was considered acceptable for police to engage in?
4.24.2009 10:57am
Whadonna More:

Anderson:

I mean, what's the city to do? Wait until he beats one of the "animals" to death, and then let the evidence of his predisposition against them come out at trial?

Of course not, everyone who uses offensive words will eventually act out violently baesd on the bias you imagine that the words represnt. The real question is why we don't prosecute more thoughtcrime.

JK. I'm no fan of police generally, but this is the typical heightened standard with the n-word (its approved only for AA use), and "water buffalo" was just broadened to "animal". If the words were one element of proving some case of misconduct, fine. Standing alone, this is sick.
4.24.2009 11:05am
Gabriel McCall (mail):
Incidentally, this kind of thing is why it's hard to consider free speech a defining attribute of American culture. Everyone knows what you're allowed to say and what you're not allowed to say. You can break the rules, but only if you don't need a job.


The tricky thing about "freedom" is that it doesn't mean that there are no consequences to your choices.

There's a huge and qualitative difference between "if you say things I don't like, I will not choose to engage in commerce with you" and "if you say things I don't like, I will imprison you and confiscate your property."

Freedom means you can go about your peaceful business without forcible interference from others. It does not mean that you have the right to compel others to do business with you; they get freedom too.

A world in which you can say whatever you like and still get to demand a paycheck is not one of freedom, but one of license.
4.24.2009 11:05am
Pete Freans (mail):
I agree that the words uttered by the PPD officers are insensitive. How have these disgusting words however influenced the officer's behavior toward his community? Has he been cited for excessive force against African-Americans in the past? Has he used his position of authority to physically discriminate against one race of people? These are the factors that I would examine before dismissing an officer.

By way of comparative analysis, should African-American officers then be dismissed for calling an African-American defendant a "N"? In my dealings with law enforcement over a 10 year period, African-American POs are even more aggressive toward members of their own race than others. Of course this information is purely anecdotal based on my experiences.
4.24.2009 11:07am
Sparky:
Commenter AF nailed it. No First Amendment protection here at all. Is there any reason to expect a newspaper article to mention the First Amendment and then crank through the analysis of Pickering, Connick, etc., only to conclude that it doesn't apply?
4.24.2009 11:11am
resh (mail):
"If that means they have to say "nigger" now and then, just to get through the day, so be it."

Why are the cop's psychological sensitivities, released as racial slurs, paramount just because he's working in a stressful mode? Would you like to compare his stress-mode, especially factoring in economics, to that of those whom you say he can rightfully call "niggers"?

Please. When your anguished cop goes home at night, those "niggers" have to stay where he's been, likely forever.
4.24.2009 11:12am
Sean M.:
Seriously? I don't see a First Amendment issue here, especially after Garcetti. The First Amendment issue is a non-starter, and the firing seems justified as a policy matter to boot.
4.24.2009 11:13am
Dan M.:
The ones who made the comments toward students at school deserved to be fired. But the journalism student ratting out a cop for making derogatory comments in the car with regard to criminals is an ass.

I don't really have a problem with slurs directed at criminals.
4.24.2009 11:13am
Strict:
Tsotha and Publius,

That's a good point. Language is not necessarily a good proxy for race. But it CAN be, especially with an exotic and rare language like Hmong. There are very few non-Hmongs who speak a Hmong dialect. There are also very few non-Somalis who speak a Somali dialect.

Some of these languages didn't even have a written form until very recently.
4.24.2009 11:15am
BooBerry (mail):
Garcetti might be tough to wrangle out of. The city would rely on Garcetti and argue that these cops were making statements pursuant to their official duties as cops (catching bad guys, etc.) and the cops would claim they weren't. And the city would also argue that such statements were just private biases and not on matters of public concern even with the journalist there. Can't see the cops winning on any First Amendment claim.
4.24.2009 11:25am
PubliusFL:
Strict: There are very few non-Hmongs who speak a Hmong dialect. There are also very few non-Somalis who speak a Somali dialect.

Hire a former missionary. He can double as department chaplain, thereby introducing a different 1st Amendment issue. ;)
4.24.2009 11:26am
Oren:


By way of comparative analysis, should African-American officers then be dismissed for calling an African-American defendant a "N"? In my dealings with law enforcement over a 10 year period, African-American POs are even more aggressive toward members of their own race than others. Of course this information is purely anecdotal based on my experiences.

If the Chief of Police wants to fire them for it, sure.

It's not forbidden, it's not required, therefore it's a matter of executive discretion.
4.24.2009 11:27am
Strict:

But the journalism student ratting out a cop for making derogatory comments in the car with regard to criminals is an ass.


She's a JOURNALIST. He was allowed in the cop car. He was doing a report. What would you expect?

I think her report was fair. She even wrote that "There are two sides to the conflict."

One of the officers who was fired had engaged in some really bad conduct. From the article: "Safarowicz, who had been with the force for 11 years and was assigned to the 39th District, was charged with burglary and criminal trespass, both felonies, and related offenses."
4.24.2009 11:27am
Bruce Hayden (mail):
Now they can get jobs as talking heads on cable news shows. I saw Mark Fuhrman, of O.J. fame, last night, opining about police procedure, etc. Somewhat of a regular, esp. given his questionable history of racial statements and possibly screwing up the O.J. case by his brilliant police work.

Now if they would just start firing cops for killing innocent civilians in no-knock raids at wrong addresses utilizing faulty evidence.
4.24.2009 11:28am
nbdy (mail):
As with everyone else here I am just not seeing the first amendment issue here. Seems like a wasted blog post.
4.24.2009 11:29am
Bruce:
Ditto.
4.24.2009 11:31am
A. Zarkov (mail):
So there's no 1A problem with firing a government employee for on-the-job speech? Does that apply to college professors at state schools? How about Ward Churchill? Note he was fired for plagiarism not his remarks. Suppose a professor of Art History speaks favorably about Susan Sontag's statement: "The white race is the cancer of human history" (Partisan Review, Winter 1967, p. 57.) and gets fired. Of course would never happen because as we know it's open season of white people-- their feeling don't count. If fact has any government employee anywhere ever been fired for making a remark against white people?
4.24.2009 11:33am
resh (mail):
@Dan M.

"But the journalism student ratting out a cop for making derogatory comments in the car with regard to criminals is an ass.

I don't really have a problem with slurs directed at criminals."

Where does it say anything in the article about "criminals"?
Or is that your Freudian drool?
4.24.2009 11:36am
BooBerry (mail):
There's no thread like a thread hijacked by a victimized white male conservative. Thanks, A. Zarkov, for your asinine, inflammatory and utterly worthless comment!
4.24.2009 11:38am
BooBerry (mail):
And yes, A. Zarkov, college professors have been fired for making such remarks about white people. See, e.g., Ward Churchill (remarks led to university finding other means to fire him). You managed to answer your question earlier in your paragraph, silly!
4.24.2009 11:41am
AF:
as we know it's open season of white people

Take heart, A. Zarkov, the Supreme Court is about to come to the rescue of us that long-victimized group, white public safety officers.
4.24.2009 11:43am
A. Zarkov (mail):
BooBerry:

Boo to you BooBerry-- the truth hurts doesn't it? You prove my point.
4.24.2009 11:45am
A. Zarkov (mail):
"See, e.g., Ward Churchill (remarks led to university finding other means to fire him)."

But he didn't get fired for his speech did he? He got fired for very serious academic misconduct.
4.24.2009 11:48am
BooBerry (mail):
I find nothing more amusing than a white male conservative who feels "victimized." I'm sorry your life is so hard, A. Zarkov. I'm sorry that affirmative action and liberal academics have made your life a living hell. I'm sorry that you are discriminated against in every facet of public and private life. Truly, I feel for you. Kleenex?
4.24.2009 11:49am
A. Zarkov (mail):
AF:

"... the Supreme Court is about to come to the rescue of us that long-victimized group, white public safety officers."

But this is not a speech issue is it? If fact this case proves my point. Just imagine if the high test scorers had been black.
4.24.2009 11:52am
Dan M.:
If he was referring to violence, then he was talking about criminals. Same as if he'd remarked about a female criminal as a "typical bitch" or an Irish criminal as a "typical mick bastard" or an Italian criminal as a "typical guinea piece of shit" or people fighting in a trailer park as "typical rednecks" I don't really care what he's saying in the car on the way there, and I don't really care what he says to the violent criminals that he's arresting.

But of course as a matter of public relations you have to fire the guy if that goes public.

I'm more concerned with assholes like Chief Ed Flynn in Wisconsin who, despite a memo from the AG, is instructing his cops to "take down" anyone that he sees openly carrying a firearm.
4.24.2009 11:53am
A. Zarkov (mail):
BooBerry:

I find nothing more amusing than a white male conservative who feels "victimized."


When did I say that I personally felt victimized? The issue here is 1A protection for government employees. Some people think we don't have it. But let's follow the consequences of such an assertion.
4.24.2009 11:55am
Strict:
Zarkov,

Your white supremacism is hilarious, because most other white supremacists would NOT consider a Jew and Eastern European such as yourself to be white.

When did your parents immigrate to America?
4.24.2009 11:57am
BooBerry (mail):
Why don't you enlighten us regarding whether and how public employee speech is constitutionally protected, A. Zarkov? I notice you post a lot on this site about legal topics, but I've never actually seen any evidence in your posts that you have any knowledge about legal issues. Do you just come here to spout off inflammatory rubbish intended to rile up the "libs"?
4.24.2009 12:00pm
einhverfr (mail) (www):

I think race-based hiring in police departments can sometimes be justified.


I can imagine cases where race might be justified in selection for certain assignments. For example, asking an African American to go under cover and infiltrate the KKK might not be very helpful.

Consequently it is at least imaginable that there could be cases where slight biases towards folks of a certain ethnicity or racial background might be justified.

However, I am having trouble imagining a situation where this would need to translate into race as a heavy factor unless the police aren't doing their jobs.....
4.24.2009 12:05pm
Oren:


I'm more concerned with assholes like Chief Ed Flynn in Wisconsin who, despite a memo from the AG, is instructing his cops to "take down" anyone that he sees openly carrying a firearm.

WI doesn't have much by way of remedies though, could be a tough one.

There needs to be a State-law equivalent of S1983 as a remedy for violating State Constitution / statutory rights.
4.24.2009 12:05pm
Strict:

I think race-based hiring in police departments can sometimes be justified.

I can imagine cases where race might be justified in selection for certain assignments. For example, asking an African American to go under cover and infiltrate the KKK might not be very helpful.


I think so. And an all-white department would be well advised to hire a black officer if they wanted to infiltrate a black radical group. Or to go undercover in an all-black neighborhood.

The most important factor of course should be competence.
4.24.2009 12:07pm
einhverfr (mail) (www):
A Zarkov:

So there's no 1A problem with firing a government employee for on-the-job speech?


I don't think anyone is saying there are NO 1A problems with firing government employees for on-the-job speech. I think everyone is saying there are no 1A problems for firing government employees for on-the-job speech which substantially interferes either with their own jobs or those of other employees around them.

There is a big difference here.

A USPS employee who states "I hope folks come after Cheney and kill him" might be protected. A police officer who says "If we pull over d$#% n$%$#rs for traffic infractions, we should just search their cars for drugs on whatever pretexts we can think up" certainly SHOULD be fired.....
4.24.2009 12:12pm
einhverfr (mail) (www):
In case it is not clear, my comment was a hypo, not related to this case in any way.
4.24.2009 12:12pm
A. Zarkov (mail):
BooBerry:

"Why don't you enlighten us regarding whether and how public employee speech is constitutionally protected,..."

I didn't say that such speech was protected. But if it's not, then what about other government employees such as college professors. Instead of personal insults, you might try to answer the question posed.
4.24.2009 12:15pm
Yuiop:
See Garcetti v. Ceballos, 547 U.S. 410 (2006) ("[W]hen 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.")
4.24.2009 12:15pm
Tony Tutins (mail):
A. Zarkov appears to be advocating academic freedom for police officers. I suppose in the marketplace of police-held ideas, that non-racist attitudes will eventually crowd out racist attitudes.

The deeper concern: how to determine which cops deserve tenure?
4.24.2009 12:19pm
A. Zarkov (mail):
einhverfr:

You're getting close to non-content neutral speech infringement.

Are you telling me that 1A protection applies to a college professor (or a public school teacher) who says to his class that "The white race is the cancer of history," but not to a policeman who makes a remark to a single individual in his police car? Are you telling me the former does not affect the job, but the latter does?
4.24.2009 12:24pm
A. Zarkov (mail):
Tony Tutins:

" ... appears to be advocating academic freedom for police officers."

Suppose a college professor said "The black race is the cancer of history?" Are you asserting that academic freedom would protect him?
4.24.2009 12:31pm
Yankev (mail):
What PatMHV said way earlier on this thread.

As far as looking at the cop's record and not just his slurs:

But of course as a matter of public relations you have to fire the guy if that goes public.
Not just public relations, but potential liability. Suppose the force kpet him on -- with or without mandatory sensitivity training. And suppose that a week or a month or a year later, he uses force -- deadly or non-deadly -- against a black suspect. If the use of force was justified, the department has an additional burden in defending him. If the force was found to be excessive or unjustified, now the department has to show why they did not fire him as soon as his animus became known.

And if this guy could not control his remarks for even one evening, knowing that he was under scrutiny by journalists, what does that say about his judgment?
4.24.2009 12:37pm
CJColucci:
"See, e.g., Ward Churchill (remarks led to university finding other means to fire him)."

But he didn't get fired for his speech did he? He got fired for very serious academic misconduct.


A jury thought otherwise.
4.24.2009 12:44pm
read icculus:
I get the argument that employers can fire/discipline someone for saying something that reflects badly on the employer.

But would there be a cause of action if you could prove different groups are held to different standards based on race?

IE, would NBC be guilty of something if they fire Don Imus for his nappy-headed hoes comment but kept on a minority broadcaster who made disparraging comments about the disabled?

Oh wait, that actually happened. Al Roker still has his job, even after making fun of epileptics suffering siezures.

Both Roker (black) and Imus (white) used language on the job that reflected poorly on NBC (assuming you're offended by these sorts of things; I'm not). Yet one loses his job and the other gets off scott free?
4.24.2009 12:48pm
D.R.M.:

WI doesn't have much by way of remedies though, could be a tough one.
Execution of Ed Flynn for tyranny by the militia (which is after all the security of a free state), followed by jury nullification of any attempt to punish the executioners.

. . . Oh, wait, you meant statutory remedies.
4.24.2009 12:54pm
BooBerry (mail):
A. Zarkov:

Some simple propositions: Academic freedom as a legal or policy norm does not exist for police officers. Academic freedom as a form of legal protection under the First Argument arguably (and likely) exists for all public teachers/professors. Even if it doesn't exist as a legal protection, it exists as a policy norm. A public professor who quotes Sontag would be probably be protected, either under the First Amendment or through their employment contract with the university (embodying some form of academic freedom). Tenured professors would be even more protected.

I respect your use of some inflammatory quip from Sontag, though, if only for your chutzpah in hijacking this thread. I am really starting to question your knowledge of anything related to the law, though. I am convinced that you simply troll these threads on real legal issues to simply throw inflammatory bombs of utter nonsense.
4.24.2009 12:57pm
Thorley Winston (mail) (www):
Here’s the article where the officers’ comments appeared for those who are interested.
4.24.2009 1:07pm
Yankev (mail):

Al Roker still has his job, even after making fun of epileptics suffering siezures.
Epileptics don't have nearly as much of a lobby. Neither do kids who participate in special olympics, which is how Big Brother Fearless Leader President Obama can get awawy with remarks that would have gotten Jimmy the Greek fired. But none of that changes the justification for firing the two cops in question here.
4.24.2009 1:08pm
Joseph Slater (mail):
As others have stated, there is no plausible 1st Am. claim. I don't even think we need Garcetti's rule that speech is not protected if it's part of the employee's job duties, because before that there's the Connick/Pickering balancing test, and that test requires that the speech must be on a matter "of public concern." Random racial slurs are not a "matter of public concern," so we don't have to do any balancing. Plaintiff loses without the employer even having to show a need to avoid/discourage this sort of speech (although the employer certainly could show such an interest). This is not remotely a close or debatable 1st Am. claim.

The more interesting question, which some of the comments above sort of get at, is whether this is sufficient cause to fire the officer. It's possible the officer has some form of just cause protection; I didn't check about this guy in particular, but policing is a highly unionized occupation, and many public employees are covered by civil service rules that also provide for "just cause" discharge. While one might want to know more facts, I would lean toward thinking this is just cause. But at least that's a debatable question.
4.24.2009 1:31pm
Tony Tutins (mail):

Suppose a college professor said "The black race is the cancer of history?" Are you asserting that academic freedom would protect him?

Dr. Revilo P. Oliver remained a professor at the University of Illinois until 1977, despite being anti-black and anti-Semite*. This though the John Birch Society asked him to leave in 1966.
From a speech Professor Oliver reportedly made in 1968:

This capacity for imitation is possessed by savages, at least by the more intelligent ones, and it has deceived us time after time. The British are as gullible as we are. Hundreds and hundreds of times, at least, they gave scholarships to Blacks from Basutoland or Kenya or Nigeria or one of their other possessions, and the result was almost always the same. With the money given him, the savage bought himself a good wardrobe, attended an English school, learned to play soccer, attended Oxford, wrote a charming essay on Wordsworth or on ancient law, copulated with half-witted English women who thought him "romantic" and themselves "broad-minded," and when he got tired of living on English generosity, went home to his tribe where he had a well-roasted baby served up to him as a delicacy of which he had been long deprived by the stupid prejudices of the stupid British.
With some of the highly intelligent Oriental peoples, the capacity for dissimulation goes much farther than that and approaches genius.
That strange and unique international people, the Jews, who for all the time in which they are known to history have lived and flourished by planting their colonies in other people's countries, have owed much of their success to the chameleon-like ability to take on, when they choose, the manners and attitudes of whatever country they choose to reside in. They are a highly intelligent people, quite possibly much more intelligent than we are. But all observers, notably Douglas Reed and Roderick Stohlheim, have commented on the Jews' amazing ability to seem a German in Berlin, a Czech in Prague, an Italian in Rome, and an Englishman in London, shifting from one rôle to the other with the ease with which a man might change his suit of clothes. The Jews have, of course, the great advantage that their skins are white, and that many of them resemble, in features, members of our race, even to the point of being indistinguishable, at least to an untrained eye, and including persons with such non-Oriental characteristics as blond or red hair.


The full text of What_we_owe_our_parasites_II.htm can be found on the stormfront.org website, or here.

*Oliver apparently did not write about the "Holohoax" until after he retired. He retained Emeritus status till his death.
4.24.2009 1:34pm
Daniel Chapman (mail):
Ironically, the thread became unreadable starting right about where Booberry started complaining about it being "hijacked."
4.24.2009 1:37pm
Daniel Chapman (mail):
Oh yeah... and no problem with either the officer's firing or the fact that the newspaper didn't mention the 1A non-issue.

Only because the first amendment clearly applies only to "Congress" and not the City of Pennsylvania. Right? RIGHT???
4.24.2009 1:40pm
Interested Party:
It wasnt the case here, but what if the officers had been black?

Does the content of the remark change with skin color?

This is fairly typical language from anyone working closely with, or living in, any impoverished neighborhood.

The tact, and civility practiced in the ghetto is not the same as practiced by the older middle class voting majority, so I understand the Chiefs need for a quick public display of disapproval (the firing).

We must also remember the "type" of individual who has an interest in becoming a police officer. There is a good chance they grew up in a very similar neighborhood and werent exposed to the powerfully repugnant "Race and Racism" classes required in state colleges.

Do we have the same standards of civility for the garbage man?

Lets skip the "my dad got his PhD before becoming a police officer," or "some of the smartest people I know are cops." We get it, theres always an exception.
4.24.2009 1:46pm
Richard Aubrey (mail):
I have a friend who is a beat cop in Detroit. He has a dark view of things. Even his humor, such as it is.
These guys face the worst there is in the city, in concentrated form.
If this cop was so wrought that he did what he knows not to do, he's into burnout and is a catastrophe waiting to happen.
4.24.2009 1:51pm
eddy:
BooBerry -- Would your first name happen to be "Dick"?
4.24.2009 2:14pm
LarryA (mail) (www):
Anyone want to start a pool on when the next journalism ride-along will be? I've got "hell freezes over."
4.24.2009 2:25pm
hawkins:

The white race is the cancer of human history....

we know it's open season of white people


You realize a white woman said this, right?
4.24.2009 2:32pm
Daniel Chapman (mail):
That makes it less offensive?
4.24.2009 2:40pm
jukeboxgrad (mail):
You realize a white woman said this, right?


Well, sort of. She's a Jew. And Strict made an excellent point about how "white" is defined in certain circles.
4.24.2009 2:41pm
jukeboxgrad (mail):
As others have mentioned, it's not just the racism, it's the stupidity. What could be more stupid than speaking that way in front of a journalism student? It's hard to think of anything, but this relevant example might qualify: using the word "macaca" to describe a dark-skinned person who is pointing a video camera at me.

William Thrasher and George Allen could form a new support group called Dumb Unemployed Racists Anonymous.
4.24.2009 2:43pm
keypusher64 (mail):
Tony Tutins (mail):
A. Zarkov appears to be advocating academic freedom for police officers. I suppose in the marketplace of police-held ideas, that non-racist attitudes will eventually crowd out racist attitudes.

The deeper concern: how to determine which cops deserve tenure?

LOL. Thanks also for your interesting post on Professor Oliver. Academic freedom currently protects J. Philippe Rushton (as it should). But he wouldn't make a very good police officer.
4.24.2009 2:49pm
NickM (mail) (www):
Of course there's a First Amendment issue here. It's one that the Supreme Court has already decided in favor of the government, but if this were part of a law school exam hypothetical, you would miss out on points if you didn't mention that the cops' First Amendment rights weren't violated under Pickering, Garcetti, et al.

Oh, and einhverfr - haven't you ever seen Blazing Saddles? :-D

Nick
4.24.2009 3:11pm
Joseph Slater (mail):
NickM:

Right, but unlike law students, the Philly Inquirer doesn't have to spot and point out legal issues claims that have no legitimate chance of succeeding. Heck, I teach public sector employment, and I wouldn't give very many points for noting something so obvious if this were part of one of my exams.
4.24.2009 3:28pm
CJColucci:
Joseph Slater:
But do you dock your students points for not raising the bogus issue and then saying it's bogus? How do you determine whether a student doesn't address an issue because he or she knows it is bogus or because he or she is so clueless as not to see it at all?
4.24.2009 3:52pm
eddie (mail):
Question for the defenders of policeman who think citizens are animals:

If the office in question had answered a entry test question that included his characterization of certain citizens as animals, would his rejection from the police academy be unconstitutional?
4.24.2009 4:09pm
Tony Tutins (mail):
CJC: Law students have to raise every colorable issue, even if they immediately dismiss it. Self-censorhip lowers your grade.
4.24.2009 4:09pm
Joseph Slater (mail):
CJColucci:

That's a hard part of grading exams. Figuring out when to give a few points because a claim, while not a winning one, is sufficiently plausible that it's worth noting; and, in contrast, when an issue is so completely implausible that it's not even worth noting, and thus not worth any points.

If this fact patern had appeared on one of my exams, I would give a few points for noting that it doesn't meet the first prong of Pickering/Connick. There could be more points in the "is this just cause to fire or not?" issue that I probably would have created by having the guy be in a union and/or covered by a civil service law.
4.24.2009 4:09pm
ASlyJD (mail):

Law students have to raise every colorable issue, even if they immediately dismiss it. Self-censorhip lowers your grade.


And then our employers wonder why we don't excise silly arguments from our work product.

I can't wait to be out of here.
4.24.2009 4:20pm
CJColucci:
ASlyJD:

And then our employers wonder why we don't excise silly arguments from our work product.

Sometimes, you learn to do that and your employers don't. There's no winning.
4.24.2009 4:54pm
A. Zarkov (mail):
Tony Tutins:

I notice you have to reach back 41 years and quote from a Nazi website to find an example. Do you assert that a professor at a public university could make that statement today and suffer no consequences?
4.24.2009 5:24pm
A. Zarkov (mail):
hawkins:

"You realize a white woman said this, right?"

Of course I did. I gave a reference to where the statement appeared didn't I? I don't see why Susan Sontag's race makes any difference.
4.24.2009 5:27pm
A. Zarkov (mail):
jukeboxgrad:

"Well, sort of. She's a Jew."

Jews are not white? How is that? Perhaps Nazis don't think Jews are white, but do you want to subscribe to their world view of the races?
4.24.2009 5:30pm
einhverfr (mail) (www):
NickM:


Oh, and einhverfr - haven't you ever seen Blazing Saddles?


Yep :-)

A. Zarkov:


Jews are not white? How is that? Perhaps Nazis don't think Jews are white, but do you want to subscribe to their world view of the races?


Well, it is more complicated that that. I am going to list a set of people by ethnicity, and I want you to tell me who is white and who is not. Please justify your answer. You will probably find out that "white" is a cultural label which has shifted over the years (and btw prior to WWII, nether Irish, Italians, or Jews were usually considered white in this country):

1) Greek
2) Iranian
3) Jew
4) Arab
5) Berber
6) Ethiopian
7) Indian (from India)
8) Pakistani
9) Afghan

Which of these would people typically consider "white?" How about 100 years ago?
4.24.2009 5:39pm
einhverfr (mail) (www):
In case you are wondering, I think "white" is a meaningless label and ascribe no utility to it.
4.24.2009 5:40pm
jeffry house (mail):
"Do we have the same standards of civility for the garbage man?"

Police officers have independent status to make quasi-judicial decisions such as arrest, search, and so on.

They have to be held to a high standard, and any cop who is so filled with prejudice as these were, is far too likely to discriminate in the application of the law. Being fairminded is a basic requirement of the job.
4.24.2009 6:01pm
wuzzagrunt (mail):
I don't have any insightful comments on constitutional law, but this (assuming the validity of the allegations) seems to make good common sense. I can't see where the 1A protects OTJ speech that undermines the employer's mission. Off the job speech is a bit ticklish, but if a city police officer is dumb enough to post pictures of himself and his cop friends, on his Facebook page, posing with Nazi flags, it does quite a bit more than embarrass the city government and PD administrators.
4.24.2009 7:41pm
einhverfr (mail) (www):
Replying to Prof. Post's update:

So presumably if a cop were to say "Man, I hate those freaking Democrats," or a state college professor said "Israelis (or Palestinians) are responsible for everything that's gone wrong in the Middle East," or a public school teacher were to say "Gay marriage is an abomination" or "Jews are really pushy, no?" -- no problems giving them the axe. Hugo Black is turning over in his grave (Jefferson, too). Silly me, but I thought the First Amendment meant that the state couldn't punish you for the content of your speech without a truly compelling reason for doing so. I know that the Supreme Court's not been with me on this - but I really did think that most of the VC readers would be.


First, race is a very sensitive issue, and the consequences here are those of a likely forced career change.

Secondly, I think there are not one, but rather two, truly compelling reasons for the firing.

The first is that maintaining the image of impartiality of law enforcement is a compelling issue when it comes to maintaining the idea that we are a government of laws rather than of men. Open racial hostility undermines this image in large part because of unjust biases which have pervaded the majority of this country's history in various forms. Having officers like this on the force will make it harder to make arrests stick because the questions of the officers' motivations will always be at issue.

The second issue is that of reducing liability of the department when it comes to questions of police brutality. A black kid claims he was beaten by police. This article gets brought out as evidence of intent, along with the unwillingness of the department to get rid of the officer in question.......

Now, on to your hypo's....

1) "Man, I hate those Democrats!" This does not impact the image of impartiality the way this case does. However, if the police officer said "I am personally looking for ways we can rough up the Democrats...." that would be a very different thing.

2) Various university professor hypo's. These are fundamentally different. Comments by individuals who we expect to intellectually challenge our young adults are in an entirely different category. Such comments do not fundamentally undermine our rule of law, and the interest is nowhere near as compelling.
4.24.2009 7:58pm
A. Zarkov (mail):
einhverfr:

The countries you list are for the most part inhabited by Caucasoids according genetic distance, archaeological, and linguistic data as shown by this dendrogram. This classification is no doubt not the most up to date as DNA analysis keeps providing new data. The first two principal components (largest two eignenvalues of the distance matrix) define clusters which roughly correspond to racial classifications.

There has arisen a school of thought that says race is purely a cultural construct with no biological basis. If you want to believe that then go ahead, but you face a mountain of contradictory evidence. Jews are for the most part white people on any objective basis despite what you read on stormfront.
4.24.2009 8:01pm
Tony Tutins (mail):

I notice you have to reach back 41 years and quote from a Nazi website to find an example. Do you assert that a professor at a public university could make that statement today and suffer no consequences?

I notice a certain A. Zarkov had to reach back one year further* to find his original example. The fifties and sixties were no golden age of academic freedom. Even today, a tenured professor could say whatever nonsense he wanted, and keep his job. But, he'd better watch his step otherwise, because the administration will be looking for an excuse to fire him for cause.

*Suppose a professor of Art History speaks favorably about Susan Sontag's statement: "The white race is the cancer of human history" (Partisan Review, Winter 1967, p. 57.)
4.24.2009 8:11pm
jccamp (mail):
A quote from the movie "Dirty Harry"

Gonzales: There is one question, Inspector Callahan: Why do they call you "Dirty Harry"?
De Georgio: Ah that's one thing about our Harry, doesn't play any favorites! Harry hates everybody: Limeys, Micks, Hebes, Fat Dagos, Niggers, Honkies, Chinks, you name it.
Gonzales: How does he feel about Mexicans?
De Georgio: Ask him.
Harry Callahan: Especially Spics.


Absent any showing that the quoted language (from the OP, not the movie) was spoken in a fashion to be overheard by members of the public or that the officer's (officers') performance somehow reflected a racist attitude, then I can't see the speech alone as sufficient grounds for dismissal of a non-probationary employee. Anyone who has ever spent time around cops will recognize the accuracy of the quote from the movie. Cops are disparaging about every group they come in contact with, including whatever ethnic identity they claim as their own. BTW, my military experience - some time back - was similar.

It may very well be that the fired officers had other performance issues, and the speech was simply one fault of several. In that case, good. Fire them. It may be that the officers conduct indicated that their application of the law was indeed flawed by some racist attitude. Again, fine. Fire them. But to terminate an otherwise satisfactory employee based on such private speech alone seems outrageous, if in fact, that's what happened. We have every right to demand objective and impartial conduct from police officers. We do not have the right - at least, i didn't think we did - to censor officers' private conversation for political correctness.

And to anticipate, yes, I understand that one officer was speaking with what he knew to be a journalist (or journalism student). Obviously, he would not have made the quoted remarks if he knew they were going to be repeated. What should be protected as private conversation could be valid grounds for termination if the speaker knew his words would be heard by members of the public, and might reflect on the organization's ability to complete its mission. But it is far from clear that's what happened here.
4.24.2009 8:14pm
UnintelligibleLiberal:

...when the government of Philadelphia fires a policeman for remarks that he made in a conversation with a journalist... So presumably if a cop were to say "Man, I hate those freaking Democrats," or a state college professor said "Israelis (or Palestinians) are responsible for everything that's gone wrong in the Middle East," or a public school teacher were to say "Gay marriage is an abomination" or "Jews are really pushy, no?"


Mr. Post,

On what basis can you, in good faith, equate saying "TNS" with "I hate freaking Democrats" or "Israelis are responsible..." or "Gay marraige is an abomination"? All of your hypotheticals do not include offensive slurs that carry significant discriminatory and historically painful connotations (while possibly discriminatory and painful, the gay marraige hypo does not contain a slur). Your hypos are just silly, they all are just stupid, politically insensitive statements. None of them rise to the level of TNS, an offensive slur that demonstrates a fundamental disrespect of a group of people based solely on their skin color.

Moreover, even if, the officer's statement was protected by the First Amendment, why wouldn't the Philly PD be justified in terminating the officer for poor judgment and damaging the reputation of the Philly PD. As previous commenters have noted, in the private sector statements such as these would constitute cause for dismissal. It follows that, any First Amendment issue aside, the Philly PD would be justified in firing him.
4.24.2009 8:30pm
A. Zarkov (mail):
Tony Tutins:

Ok suppose today a college professor speaks approvingly of the 1968 statement you cited from stormfront, do you assert he will suffer no consequence?

Today we do find professors and staff making anti-white statements. The University of Delaware went way beyond classroom statements to an active program of re-education directed at white freshman according to reports from FIRE. The events took place in 2007 and to my knowledge no staff or faculty member was fired for abusing students.
4.24.2009 8:37pm
einhverfr (mail) (www):
A. Zarkov:

The countries you list are for the most part inhabited by Caucasoids according genetic distance, archaeological, and linguistic data as shown by this dendrogram. This classification is no doubt not the most up to date as DNA analysis keeps providing new data. The first two principal components (largest two eignenvalues of the distance matrix) define clusters which roughly correspond to racial classifications.


So, in your view, is this what people mean when they say "white?"

How often are African-Americans "white" according to these criteria?
4.24.2009 8:51pm
John R. Mayne (mail):
Two notes on the update:

1. No. Those are different. Your presumption that most commentators would see them as the same is mistaken. Specific words and exact context are important.

2. I'm not sure that your open disdain for the commenters' position is justified.

--JRM
4.24.2009 8:52pm
Joshua Nieuwsma (mail):
I am equally dismayed at the destruction of the right of Free Speech in our nation today. Being fired for what you say IS a violation of free speech, I'd argue, nearly always. I'm not a lawyer and not well versed in legal think, though I did work for one before, but I believe free speech is definitely "wholly 'beyond the reach' of federal power to abridge," as Black said, and it should be beyond the power of anyone in authority over any of us to abridge. I'm against all forms of coercion and pressure to conform to particular ways of talking, whether it be PC, corporate sex ed, or other public and/or private censureship of words written and spoken, and sometimes even thought. Our society has lost the understanding of the words, "respectful discourse", and has forgotten what accountability truly means. Instead of holding people accountable for their words, meaning that we judge people by what they say and gain or lose respect for them based on their language and how they honor others (obviously in this case the police officer ought to have lost the respect of his department, as well as the respect of his family/friends, etc.) still lack of respect for someone is not a legitimate reason to fire them. If he still does his job well, despite his mannerisms, he does not deserve to be fired. Perhaps not rehired again when his contract renews if another man with equal job skills and better mannerisms comes along, but again that decision should be based on his job performance not his words used while working. His employer could have inquired after his typical mannerisms when they first hired him - obviously they didn't, which is part of my point. Now, obviously there's exceptions, such as him giving vivid descriptions of some evil or other that he wants to perform upon those in his custody, but this is not a case of that, this is a case of him choosing to refer to particular members of society in a disrespectful way. I also think this sort of attitude revealed in his words comes from an us-vs-them mentality that the war on drugs, among other things, has created within the police forces in the U.S. In both world wars, American soldiers and civilians always referred to Germans, or Japanese, or Italians, etc. with derogatory words and no one ever complained a bit - because they were the bad guys. This is normal for all participants in a war - and I think the drug war is just as real of a war, though far more pointless, than any war the U.S. military has fought. Today, however, using words used in past wars to describe ethnic groups is inappropriate within our societal customs - disrespectful, in other words. But disrespect is not poor work. Employers are free to choose to not hire the guy who is disrespectful... but don't censure his words either.
4.24.2009 9:24pm
A. Zarkov (mail):
einhverfr:

"So, in your view, is this what people mean when they say "white?"

How often are African-Americans "white" according to these criteria?"


I don't know who "people" are. But absent genetic data, I suspect most people would rely on how someone self identifies, and general visual pattern recognition. It turns out that the correspondence between classification by genetic distance and visual pattern recognition is pretty good. Of course admixtures get difficult. But let's face it, most people can tell a Lapp from a Nigerian with high reliability. But note just skin pigment alone does not make a good classifier.

Since many Americans of African ancestry are admixtures, they can be very difficult to classify even with DNA analysis. For example Adam Clayton Powell was lighter than many Italians, and had other features not usually found in Africans. Yet for political purposes he self identified as black.

I'm not sure where all this is leading. Susan Sontag was probably a genetic white person and we have no reason to believe otherwise. Some nuts over at stormfront would say otherwise, so what?
4.24.2009 9:27pm
Michelle Dulak Thomson (mail):
JRM,

I would think a cop who spoke like that in front of a journalist would be in bad trouble with his management simply for bringing his outfit into disrepute, but outright firing seems harsh to me.

You're right about the examples in the update not being comparable, but it's not difficult to come up with others that would be. If an officer's beat included a trailer park where there was frequent, um, stereotypical white-trashy behavior that required police presence (brawls, drunkenness, domestic violence, what have you) and the cops in the area had acronymed it into TWTS or possibly TR[edneck]S, would that be inexcusable? Impolite and impolitic, sure, but a firing offense?
4.24.2009 9:32pm
Nifonged:
"Speech in our nation today. Being fired for what you say IS a violation of free speech, I'd argue, nearly always."

Do you think there is a difference between working in a private as opposed to public employer?

For example, if my secretary tells me to "go to hell" (at my private company) with no provocation I would likely fire him on the spot.

If I'm a Constitutional Law professor at State U. and my assistant tells me to "go to hell" with no provocation should I precluded from seeking his dismissal?

Or is the scenario so compelling for dismissal that the FA issue is moot?

My point being, simply working for the state shouldn't give such worker carte blanche to say whatever they want without reprise, the FA wasn't intended to be a state union worker's fringe benefit.

In the case at hand, I'm not going to judge as I have not nearly enough knowledge about what was said and in what manner, but I echo other commenters' sentiments that the FA issue isn't necessarily the first thing to come to mind whenever a state worker is dismissed from employment.
4.24.2009 10:10pm
David M. Nieporent (www):
"The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman. There are few employments for hire in which the servant does not agree to suspend his constitutional rights of free speech as well as of idleness by the implied terms of his contract. The servant cannot complain, as he takes the employment on the terms which are offered him. On the same principle the city may impose any reasonable condition upon holding offices within its control. This condition seems to us reasonable, if that be a question open to revision here." - OWH

(Yes, I know it's not actually good law.)
4.24.2009 10:48pm
BooBerry (mail):
Honestly, who cares about who qualifies as white? Is this what happens when A. Zarkov barges into a thread spouting nonsense?

And I understand that David Post was looking for more of a discussion of normative values with respect to public employee speech, but isn't it a little strange to analyze this issue without differentiating between speech of a public professor/teacher and that of a public employee with no attendant academic freedom interest?
4.24.2009 11:06pm
jccamp (mail):
When everything else fails, read the source material. Duh. I went back to the original Philadelphia Inquirer article and saw this:

"Golden said a large fight in Audenried's cafeteria had required a response from school and city police. During the response, students complained, and teachers and other staff allegedly heard Swan and Ferriola utter racial epithets at students."


If, in fact, the officers made open remarks as alleged, the police department may very well be able to sustain a government interest in controlling such speech, since it's no longer really a private conversation. Absent other deficiencies in the employees, I'd still say termination is harsh, especially if the comments had been directed toward, as pointed out above, "trailer park white trash" or similar less volatile words.

There's certainly room for a reasonable argument in either direction, absent such additional details about what kind of employees these cops were. But I think the OP is correct to be concerned that being politically incorrect or immoderate of speech can cause termination in civil service.
4.24.2009 11:15pm
J. Aldridge:
David Post wrote: "the First Amendment, which one would think would quite obviously protect a government employee's speech, has simply lost much of its power, and most people seem to take it for granted that it doesn't apply here."

First Amendment was never intended to protect private speech but to protect open criticism directed at government. Consider Paul Madison's great words of wisdom: "The great advantage of adhering to original meaning is that it does not act to force courts to read inventive “exceptions” into constitutional words to either sanction a law or rule the law unconstitutional."
4.25.2009 2:02am
D K Warren (mail):
The officers were on-duty, the speech did not address a matter of public concern (as interpreted by the courts for First Amendment purposes), the use of racial slurs could be seen as creating a hostile work environment (see the footnote 75 and the accompanying text in this article), the officer's could have incited violence by others (insofar as they used racist insults while they were trying to break up the cafeteria fight), and the limited utility of using racial slurs in this situation was outweighed by the city's interest (as an employer) in the effective functioning of it's police force.

See, e.g., Tindle v. Caudell, 56 F.3d 966 (8th Cir. 1995)(upholding termination of police officer for racist expression); also, Karins v. City of Atlantic City, 706 A.2d 706 (N.J. 1998)(upholding a firefighter's suspension for using an off-duty racial slur, in part because the employee's conduct had a tendency to destroy public respect for City employees).

A Milwaukee fire chief was recently suspended for 90 days after using racial slurs (background story available at this link). And earlier this year a Connecticut Superior Court judge was suspended for 8 months after she used racial insults towards police officers during a DUI stop (see this article).

When a police officer expresses racist, homophobic or other biased sentiments, it raises serious questions about their ability to carry out law enforcement duties. The public must have confidence in an officer's open-mindedness and neutrality.
4.25.2009 4:40am
Joel Rosenberg (mail) (www):
My own take: fire the asshole. He's not just a bigot, but a moron; it's to the PD's (and the Philly public, who will pay) benefit to get rid of bigoted morons before they become the cause of some lawsuit.

That said, tone it down some . . . what if he says, "You know, in what I do, I seem to see some differences in behaviors from people of different races, and sometimes wonder if there might be a racial component to some of the bad things that some folks do." Maybe he means "TNS"? Fire him then?

Here, of all places, I think folks should be sensitive to issues around slippery slopes, and try to work those through.
4.25.2009 9:10am
Dan M.:
I don't think that the state firing you for your speech is a First Amendment issue because they are your employer and not necessarily acting as the state. If a public school teacher said to a journalist "I can't stand these fucking spics; none of them know how to write a coherent sentence!" then I wouldn't complain if she got fired because the school can't afford for Latinos to be predisposed to thinking they won't get a fair shake in her class.
4.25.2009 9:39am
Strict:

1) Greek
2) Iranian
3) Jew
4) Arab
5) Berber
6) Ethiopian
7) Indian (from India)
8) Pakistani
9) Afghan


This is getting tangential. But I have also met Greek, Central American, Iranian, Iraqi, Ethiopian, African-American, and Korean Jews. I wouldn't really consider them as "white," except maybe some of the very pale redheaded Iraqis. And this isn't from a Stormfront worldview - it's just from basic appearances. If you're brown - like me - you're brown, not white.

I'm friends with a Lubavitcher rabbi. If someone asked me to describe his appearance, I probably wouldn't say "white."
4.25.2009 11:04am
Strict:

"trailer park white trash"


I think this can be a very harmful thing to say. I've had the uncomfortable experience of being in a room with a friend from a trailer park while another person [a white, 'elitist' liberal] went on and on about "trailer trash" this and "trailer trash" that.

People just need to be nicer to each other. Just because you grew up in a house doesn't make you any better than someone who grew up in a trailer. That's elitist bullshit.
4.25.2009 11:10am
einhverfr (mail) (www):
Joel Rosenberg:

That said, tone it down some . . . what if he says, "You know, in what I do, I seem to see some differences in behaviors from people of different races, and sometimes wonder if there might be a racial component to some of the bad things that some folks do."


I don't see any reason why that would cause an undue hardship for the organization if they let him stay on. Yes, that should be protected.

Strict:

This is getting tangential. But I have also met Greek, Central American, Iranian, Iraqi, Ethiopian, African-American, and Korean Jews. I wouldn't really consider them as "white," except maybe some of the very pale redheaded Iraqis. And this isn't from a Stormfront worldview - it's just from basic appearances. If you're brown - like me - you're brown, not white.


The fundamental problem I was trying to get at was Mr Zarkov's assertion that "white" meant "Caucasoid" This ties the notion of "white" not to skin color but to skull measurements. There are various subdivisions here used in archaeological/physical anthropological circles, which are also based on skull measurements. Furthermore, when you look at cases where intermarriage has had strong impact (Latin American Mestizos, African Americans in this country, etc), you can no longer find a simple correlation between skin color and bone measurements.

It also leads to fun questions like "Is Colin Powell white?"

In the end race, like language, is usually defined by self-identification more than anything else.
4.25.2009 12:14pm
Public_Defender (mail):
Professor Post,

I can see First Amendment implications, but the officer should lose because this affects his job. Those statements could come in on cross exam as bias every time he testifies in court. That could serious hurt the ability to convict people in cases in which was a witness.
4.25.2009 12:21pm
m:
PatHMV
"A cop's job includes treating politely and civilly all with whom they come in contact."
I'd hope that's in NO policeman's job description, in that wording.
4.25.2009 12:32pm
Mark in Texas (mail):
David

The First Amendment is about the right to pornography. What does that have to do with a cop saying things to a journalist, even a junior journalist in training, that are guaranteed to get him fired if published?

I used to know a fellow who had been a policeman back in the days before Miranda. He said many politically incorrect things that would have gotten him fired if he were still on the force but the thing that I really remember is when he would talk about arresting somebody for "Misdemeanor Stupid" or "Felony Stupid".

Those cops were fired for a similar offense.
4.25.2009 1:13pm
Public_Defender (mail):
Remember Mark Fuhrman? His racist comments helped a guilty man beat a murder case. What cops do and say off duty affects their ability to do their job.

A lot of criminal cases depend on juries taking cops at their word. If jurors stop trusting cops, it makes the prosecutor's job a lot tougher. The prosecutor will have to offer much better deals to avoid trials. And if cases go to trial, guilty defendants are more likely to be acquitted.

And if the cops weed out the racists among themselves, innocent people are less likely to face charges in the first place.

Weeding out racist cops helps innocent people and hurts guilty defendants. Isn't that a win-win?
4.25.2009 1:25pm
BooBerry (mail):
Not if you have some absolutist fantasy about the First Amendment protecting and and all public employee speech.
4.25.2009 1:26pm
A. Zarkov (mail):
Strict:

"I wouldn't really consider them as "white," except maybe some of the very pale redheaded Iraqis. And this isn't from a Stormfront worldview - it's just from basic appearances. If you're brown - like me - you're brown, not white."

You are confusing skin pigmentation with race; they are not synonymous. Asian Indians certainly have dark complexions, but they are classified as "white" both genetically and legally. The term "white" can refer either to a racial classification or complexion. Which one should be clear from context. Asian Indians in America tried to get classified as a protected group and Judge Posner ruled they were white.
4.25.2009 1:29pm
A. Zarkov (mail):
Dan M.:

"If a public school teacher said to a journalist "I can't stand these fucking spics; none of them know how to write a coherent sentence!" then I wouldn't complain if she got fired because the school can't afford for Latinos to be predisposed to thinking they won't get a fair shake in her class."


Does the same hold for a teacher who says something derogatory about white students? Do they get to be concerned about getting a fair shake in class?

Let me remind you that in most major American cities whites are now a minority. In the 40 largest metropolitan areas about 3/4 of the associated core cities have whites at less than 51% of the population. See the population table here. The average percentage of the core cities is 39%. Count up all the entries in column 2 that are less than 51%.
4.25.2009 1:49pm
BooBerry (mail):
(Imitating A. Zarkov): Wah, wah, wah! Whites are victimized, subjugated and scorned. They are discriminated against and mocked openly. White people can't get a fair shake at life. A single line from a Susan Sontag essay encapsulates everything that is wrong with society. Someone, please, give me some Kleenex because I am bawling my eyes out at the injustice and bigotry perpetrated against white people in this world.
4.25.2009 2:12pm
Nifonged:
Jeez, I agree with booberry in regard to the FA issue, but the 2:12 response was plain embarassing...yet I see that same "argument" more often than warranted. Turn the tables on discrimination and it becomes a social construct rather than the real issue.

Of course if white kids are discriminated against in public schools (and it does happen some times in public school systems that have a SUPERminority of whites, say below 10%, like where we live) it should be handled accordingly (which it typically is), rather than non sequitur hysterics.
4.25.2009 2:33pm
einhverfr (mail) (www):
A. Zarkov:

First, you are the only one I know who would refer these folks as "white."

In common speech, "white" does not mean "Caucasoid." Besides, how many African Americans are "Caucasoid?" Does Halle Barry qualify?


Does the same hold for a teacher who says something derogatory about white students? Do they get to be concerned about getting a fair shake in class?


Not enough information to judge. Does it impact the teacher's image as being impartial? Is this in a public school? A college? A university? What is the context of the remark?

Not every derogatory comment needs to be in that level. If we are talking about elementary/middle/high school teachers and they say things which call their fairness into question, then that should be investigated. In some cases even a single remark might be sufficient, like "Whiteys deserve to fail because they don't respect me." In other cases, I would want to see more to it.

If the comment was "We have a lot of students which come from families folks might call 'typical white trash.' They are good kids but really have everything going against them. I try hard to make a difference but sometimes it is difficult. If I could accomplish one thing I would like to see many of these kids go on to college and be really successful!" I would be a lot less convinced.
4.25.2009 2:47pm
BooBerry (mail):
einhverfr: You seem like a reasonable fellow. Why do you engage A. Zarkov on these issues? His inflammatory and nonsensical hypotheticals and critiques have no relevance to the original issue.
4.25.2009 2:52pm
A. Zarkov (mail):
einhverfr:

"In common speech, "white" does not mean "Caucasoid." Besides, how many African Americans are "Caucasoid?" Does Halle Barry qualify?"

As I said Americans of African ancestry are admixtures, but it terms of genetic distance they are generally closer to Africans than Europeans.

This whole thing began with some remark about Susan Sontag. The people over at stormfront don't consider her white, but of course she is both in terms of complexion and genetics, and I think most people would agree with that.

I don't see where you are going. What's the basic issue here?
4.25.2009 3:06pm
A. Zarkov (mail):
BooBerry:

I would remind you that the comment policy here says that comments here should be free of name calling. Yet you persist in lowering the civility of the thread by repeated personal attacks and name calling. If your purpose is embarrass yourself, then you are succeeding splendidly. From this point I'm an going to ignore you.
4.25.2009 3:10pm
BooBerry (mail):
A. Zarkov: You are certainly the pot calling the kettle black. I come to these threads ready to engage on legal issues. You come to these threads with the intent of flaming them with inflammatory garbage about how discrimination and hate speech against white folks is now pervasive and widespread; how white people are now minorities in large cities; and how Susan Sontag once said something critical of the white race.

It is YOU that is hijacking these threads and embarrassing yourself. It is you who displays a conspicuous lack of knowledge about legal issues. I flame no one and nothing. I just can't stand trolls (and the more conservative and annoying ones test my patience to its absolute limit). Sorry to have had you in my sights, but you brought it upon yourself. Shape up, or ship out.
4.25.2009 3:17pm
A. Zarkov (mail):
einhverfr:

"Not enough information to judge."

I think there is, and you know it. Teachers, police and other government employees should refrain from needlessly inflammatory on-the-job statements about any race as a matter of civil behavior. If the government set such a neutral policy there wouldn't a problem. But once it starts to treat derogatory speech hurled against once race differently, the potential for 1A problems arises.
4.25.2009 3:19pm
jccamp (mail):
Strict -

I wasn't proposing that particular term (white trash) was acceptable. I was suggesting that if the fired officers had used a different pejorative, aimed at a different ethnic group, I'm not sure anyone would see termination as reasonable. So, substitute your choice of ethnic slur - stupid Mick, for instance, since I'm from irish antecedents - and who would cite that as grounds for termination? How about "cracker?" Or is the N word a special case all by itself, because people who might be sensitive to the N word are more of a victim than anyone else who would be offended by an ethnic slur? I don't think anyone is defending the cops or their language. But I do think that immoderate speech becoming grounds for employment - actually grounds for end of employment - is something that wouldn't happen in too many other places without some loud protestations.

On the other hand, the OP makes the point, which I think valid, that objectionable speech is also probably protected speech in many instances. Following the reasoning of the termination, will disagreeing with some POV lead to firing, such as "I think marriage should be between a man and a woman." or "I think same sex relationships are an abomination before God." I don't necessarily agree with either of these, but there are flash-points in some PC circles, and getting close to being termed "hate speech." How about a slur directed at a body type, such as an overweight person? Would that be a firing offense, even if it was factually accurate?

It also seems to me that some posters have confused their lack of respect, perhaps general distaste for the kind of police officer portrayed by the conduct described with the issues, personalities removed.
4.25.2009 3:45pm
Laura(southernxyl) (mail) (www):

Joel Rosenberg (mail) (www):
My own take: fire the asshole. He's not just a bigot, but a moron....

That said, tone it down some . . . what if he says, "You know, in what I do, I seem to see some differences in behaviors from people of different races, and sometimes wonder if there might be a racial component to some of the bad things that some folks do." Maybe he means "TNS"? Fire him then?


That's a good point, and I think it helps llluminate one of the things that's wrong and offensive about the TNS stuff. It would be one thing to say something like, "In the past two weeks I've arrested 6 people for shoplifting, and every one of them has been black; I wonder why." and quite another to say "Shoplifting is TNS" and, pointing to random black people on the sidewalk, refer to them as "n----s." I don't think a person who assumes criminal behavior is the norm for wide swaths of the population could really be expected to police them effectively. That's not to say that you can ignore the evidence in front of your eyes.

It's kind of like the difference between deliberately drawing people for some activity from a specific race pool, and noticing after the fact that people of a specific race seem to be over-represented. No one is preventing tall, athletically talented white folks from playing basketball, things have just worked out that way. To say "I wonder why all the really top-notch basketball players are black" is completely different from saying "black people are basketball players."
4.25.2009 4:34pm
Dan M.:
A. Zarkov

Of course it should apply to white people. I'm a white conservative Irish-Italian gun owning West Virginia trailer park dweller (Guinea Mick redneck trailer trash). When I have kids someday, if some teacher makes derogatory comments that give me reason to think my kids aren't going to get a fair shake, if that son of a bitch isn't fired I'm going to watch him like a hawk and make his life a living hell if he ever grades anything inappropriately.

If I ever become a public school teacher, I'm going to keep all my rants about 'liberals' amongst friends or relatively anonymous.

I don't think it's a huge burden to sacrifice my facebook account to make peace with my coworkers and customers.
4.25.2009 9:41pm
A. Zarkov (mail):
Dan M.:

"Of course it should apply to white people."

A lot of people would not agree. They argue that as the dominant group whites must necessarily be treated differently. For example the University of Delaware had an orientation program that singled out the white students for ridicule. You can find all the source material at the FIRE website here. The following is typical of the materials,
... that “[a] racist is one who is both privileged and socialized on the basis of race by a white supremacist (racist) system. The term applies to all white people (i.e., people of European descent) living in the United States, regardless of class, gender, religion, culture or sexuality.”
Many law firms send their new associates to orientations that similarly try to degrade men and white people under the guise of "diversity training."

One day in John Galt fashion, white people start to push back, and the grievance industry finds that prospect extremely threatening.
4.25.2009 10:59pm
BooBerry (mail):
A. Zarkov: At bottom, we all recognize that you have some fundamental disagreement with the dominant narrative of European and American history. What you're doing, though, is just nitpicking with the surface while not getting into the substance. I'd love to hear you opine on history. Something tells me it would be an incredibly unique experience.
4.25.2009 11:16pm
Dan M.:
A. Zarkov:

I agree with you. I simply believe in the principle that if you cannot keep your prejudices private, then your employer can make a decision that you do them a disservice and can rightfully fire you.

Many universities apparently think that insulting white people is positive for their public image. It is up to us to hold our public institutions accountable.

I think that publicizing private conversations to get people punished at work is pretty sleazy in most circumstances, but once that is done, the employer must make a decision based on the smooth operation of his business.

If we white people want to change the way universities define white people, we have to make such statements contrary to the smooth operation of educational institutions.
4.26.2009 12:23am
einhverfr (mail) (www):
A. Zarkov:

If the government set such a neutral policy there wouldn't a problem. But once it starts to treat derogatory speech hurled against once race differently, the potential for 1A problems arises.


Where I drew the line was where it was substantively harmful to the ability of the individuals or those they serve with to do their jobs. That is a simple and straightforward rule. In these cases, it makes it harder for prosecutors and harder for other officers.

A school teacher is in a different situation. Some things which are fundamentally problematic for law enforcement may or may not be so fundamentally problematic for a teacher. Hence the line is a finer one which turns much more on context.

Where do you draw the line?
4.26.2009 12:43am
einhverfr (mail) (www):
BTW, the one thing I do find disturbing about this case are the misdemeanor charges for these sorts of things, assuming there isn't more to the story that hasn't made the newspapers.

The felony indictment against one of the officers seems a good idea though if the facts can back it up. It seems likely that this is more than a few bad words.
4.26.2009 12:54am
Rich Rostrom (mail):
Einhverfr: prior to WWII, nether Irish, Italians, or Jews were usually considered white in this country...

This is nonsense on stilts. There was certainly ethnic prejudice against all three groups, but none of them were disfranchised - as non-whites routinely were. Consider James Shields: born in County Tyrone, and elected to the U.S. Senate from three different states - the first time in 1849. Or Senators Judah Benjamin and David Levy Yulee: Jews elected to the Senate from Louisiana in 1853 and Florida in 1845. Or New York Mayor Fiorello La Guardia (first elected to Congress in 1916).

Indeed, the great nativist panic of the 1850s (the "Know-Nothing" movement) was substantially driven by the fact that the immigrants arriving in unprecedented numbers were white and thus could not be excluded from power.

Neither were they subject to miscegenation laws. (Though one redneck judge dismissed a miscegenation charge because the wife was Italian and thus not "white".)

There is a difference between "not quite our kind" and non-white.
4.26.2009 3:09am
Joseph Slater (mail):
David:

You say you disagree with current law in this area, but you haven't said how. I'm curious: what part of the Connick/Pickering and Garcetti tests would you change, and how? And would the legal test(s) you prefer result in this cop actually having a winning 1st Am. claim?

FWIW, if I ran the zoo, I would get rid of Garcetti's limit on the First Amendment rights of public employees (that speech is not protected if it's part of the employees duties). But take away that rule in this case, and I think the cop still loses. Also, if I ran the zoo, I would strongly consider getting rid of the requirement in Connick/Pickering that, in order to gain protection, a public employee's speech must be on a matter of public concern. But take away that rule in this case, and I think the cop still loses the balancing test, because the police department has a pretty strong interest in its cops not going on record with racists slurs.

What do you think?


It's a fair question. I'm not going to give you a great answer, however. I appreciate that the doctrine will -- necessarily -- be complicated. But arguing about doctrine (a good thing to do) presupposes agreement on the set of first principles from which the doctrine should flow, and it's the first principles that strike me, in this discussion, as more up for grabs than I would have thought. I don't think speech should be subject to "balancing tests" of any kind; the government needs truly compelling reasons to punish speech, in my view, in all circumstances (including the context of public employees). To me, that's what the First Amendment means. So in a way I come at this backwards: any doctrine that would justify punishing the cop in this scenario is a bad one, because I don't believe the government has a compelling reason to shut him up. What about if he used the n-word with some friends, sitting around in his apartment? What's really going on here is that the state is punishing him for bad thoughts, and I don't think that should be countenanced.
David
4.26.2009 1:38pm
ReaderY:
When a police officer on patrol makes a statement to a journalist observing the patrol, the officer is on duty and the reasonable inference is the speech is from the government. After all, the cop on the beat represents the law in his or her neighborhood.

Government has a right to control its own speech in cases and ways far more controversial than this one.

I see no colorable First Amendment claim here. The police officer could have been fired simply for bringing in a journalist while on duty without pre-authorization or against a policy limiting who talks to journalists. It didn't even matter what he said.
4.26.2009 2:39pm
ReaderY:
Finally, given that the officer used "fighting words" in front of a journalist likely to publish them, once the content is taken into account it doesn't matter if he was on duty or off. Police officers have an obligation not to start riots. There doesn't have to be a formal process to show that behavior which tends to start riots is detrimental to a police officer's mission. One can rely on precedent for the that these words are "fighting words", there is no need to show the same thing from scratch each time.

Perhaps journalists should mention the first amendment in these matters, but this is a legal blog. The advice for legal bloggers is to at least acknowledge the current state of the law and make a lucid argument for changing it, rather than presenting a wished-for state of the law as if it were fact and expressing outrage that courts and tribunals aren't conforming to it.
4.26.2009 2:47pm
einhverfr (mail) (www):
ReaderY:

I notice one thing Post neglects to mention is that these two officers are now facing misdemeanor charges, and another officer is facing a felony charge (the officer facing the felony charge is charged with a number of things including breaking and entering, but the misdemeanor charges appear to be related to these speech elements).

I think the cops should have been fired. For them to be charged with even misdemeanors for what amount to pure speech seems problematic to me, though.
4.26.2009 8:00pm
just a country lawyer:

Thrasher allegedly referred to the violence in his predominantly African American district as "typical n- s-" or "TNS."


sounds like a typical jury panel for me.

the professor who started this post needs to get out in the real world maybe. of course the cop can be fired.
4.27.2009 9:29am

Post as: [Register] [Log In]

Account:
Password:
Remember info?

If you have a comment about spelling, typos, or format errors, please e-mail the poster directly rather than posting a comment.

Comment Policy: We reserve the right to edit or delete comments, and in extreme cases to ban commenters, at our discretion. Comments must be relevant and civil (and, especially, free of name-calling). We think of comment threads like dinner parties at our homes. If you make the party unpleasant for us or for others, we'd rather you went elsewhere. We're happy to see a wide range of viewpoints, but we want all of them to be expressed as politely as possible.

We realize that such a comment policy can never be evenly enforced, because we can't possibly monitor every comment equally well. Hundreds of comments are posted every day here, and we don't read them all. Those we read, we read with different degrees of attention, and in different moods. We try to be fair, but we make no promises.

And remember, it's a big Internet. If you think we were mistaken in removing your post (or, in extreme cases, in removing you) -- or if you prefer a more free-for-all approach -- there are surely plenty of ways you can still get your views out.