If This Man's Speech Isn't Protected, No One's Is

If This Man's Speech Isn't Protected, No One's Is
AP Photo/Richard Drew, File
If This Man's Speech Isn't Protected, No One's Is
AP Photo/Richard Drew, File
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In the age of online shaming and political correctness, many people rightly fear that they could lose their employment for their private opinions. Last month it was Kevin Hart, who stepped down from hosting the Oscars over homophobic tweets from his past. Before him, Nicholas and Erika Christakis were forced out of their roles as faculty in residence at Yale’s Silliman College for their remarks on Halloween and cultural appropriation.

You may think that you are surely safe from all this. After all, you won’t be hosting the Oscars or working with hyper-sensitive college students. Nor do you have wrong opinions on anything too controversial. You may think you are immune. But you are wrong. After all, many, if not most, victims of public shaming and retaliation for “wrong think” are average citizens. Just ask Salvatore Davi, who worked as an administrative law judge in New York’s Office of Temporary and Disability Assistance from 2010 to 2015. He was considered an exemplary employee. Yet Davi’s employers charged him with seven counts of professional misconduct for comments he made while debating politics on Facebook. 

What sort of comments warranted seven counts of professional misconduct? Perhaps Davi spoke too critically of his superiors or of his department’s policy? Perhaps he embraced racism? Or perhaps he dared to speak out against one of the two sacrosanct achievements of the sexual revolutionabortion or marriage equality? 

It was nothing so exciting. Davi was charged with professional misconduct for expressing an opinion on Facebook about welfare reform.  

It all began when one of his Facebook friends posted an article from The Daily Kos arguing that welfare programs such as food stamps were working well and should be expanded. Davi offered a mild objection. He offered the opinion that the article used “the wrong metric” to weigh success. The efficacy of welfare programs, he suggested, should be judged by measuring “how many people or families they get back on their feet.” A truly effective social safety net, he added, should be “of limited duration and designed to get people back to self-sufficiency.”

Someone anonymously sent Davi’s comments to his employers. Because he worked with welfare applicants and made recommendations about which applicants should receive benefits, his employers claimed that someone with his views couldn’t impartially manage his caseload. They charged him with professional misconduct for bias and tried to terminate him. When that failed, they suspended him for six months and moved him to a position where he would no longer adjudicate cases.

No evidence was ever presented to support the allegation that Davi was biased or unprofessional in his role. No colleague or client of his agency ever complained that he handled his cases with bias. He didn’t even have the power to deny anyone welfare benefits. His record showed he recommended benefits be awarded in 95 percent of the cases he managed. The only evidence New York could summon to support its charge that Davi was biased was the Facebook argument in which he expressed a position on welfare policy that is commonly espoused by conservatives (but not only conservatives). 

Represented by the Center for Individual Rights, Davi filed suit against New York for violating his First Amendment right to free speech. His case is currently pending before the U.S. District Court for the Eastern District of New York. Given that New York committed blatant viewpoint discrimination in punishing him for his political views, the case raises free speech issues important to all public employees. 

A court victory for Davi would be a welcome end to this saga, but it won’t change the troubling fact that the government of one of the largest states in the country felt comfortable punishing a civil servant for his personal views. Private sector companies may be able to treat their employees this way, but governments are constrained by the First Amendment -- or should be -- and should set an example for the rest of us. After all, if Sal Davi’s speech isn’t protected, then no one’s really is. The courts should reprimand New York as sternly as possible and remind all government entities that they can’t punish public servants for exercising their First Amendment rights of free speech.  

Brian K. Miller is The Center for Individual Rights’ director of legal and public affairs.

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