So the Boston Police Department, having discovered that one of its officers (Justin Barrett) sent a truly revolting email about the Henry Louis Gates arrest to the Globe and some other folks, has suspended him, and is apparently going to try to fire him as fast as they can. The Mayor wants him “g-o-n-e,” saying that he’s a cancer on the department. And so on.
There are still important details to be filled in here — did Barrett use a BPD email account? Did he send the email under his own name, or was it anonymous? And what is the nature of Barrett’s BPD job? Beat cop? Administrative guy? Supervisor? Something else?
Does any of that matter?
Actually, yes. It matters because the First Amendment is not irrelevant in this case. A few years back, an NYPD employee repeatedly sent anonymous racist fliers through the mail. He was found out and fired, and he sued the NYPD claiming that his First Amendment rights had been violated. The Second Circuit rejected his claim.
But Judge Sotomayor dissented. She thought that a searching, fact-specific inquiry was needed to determine whether the department’s interest in firing the guy overcame his First Amendment right to express his views, however offensive they may be. As she explained:
To be sure, I find the speech in this case patently offensive, hateful, and insulting. The Court should not, however, gloss over three decades of jurisprudence and the centrality of First Amendment freedoms in our lives because it is confronted with speech it does not like … I recognize that the Pickering test affords substantial deference to government employers, particularly in the law enforcement context. The NYPD’s concerns about race relations in the community are especially poignant. But there are limits. “At some point, such concerns are so removed from the effective functioning of the public employer that they cannot prevail over the free speech rights of the public employee.” Rankin, 483 U.S. at 391. The question is on what side of the line does this case fall.
Seems to me that the same issues are in play with Officer Barrett, though it may well turn out that, in Barrett’s case, the factors cited by Sotomayor counsel in favor of his being fired. Nonetheless, how ironic that Sonia Sotomayor, herself derided by some as an anti-white racist, went out of her way to uphold the free speech rights of an actual racist — one who, no doubt, would find the prospect of her elevation to the Supreme Court repugnant.
