Posted by David Bernstein:
Sotomayor--You CAN Say That!:
http://volokh.com/archives/archive_2009_05_24-2009_05_30.shtml#1243377266
Given [1]my interest in protecting the First Amendment from
overzealous anti-discrimination rules, I was heartened to discover
Judge Sotomayor's dissent in Pappas v. Giuliani. As Sotomayor
summarized the majority opinion:
The Court holds that the government does not violate the First
Amendment when it fires a police department employee for racially
inflammatory speech - where the speech consists of mailings in
which the employee did not identify himself, let alone connect
himself to the police department; where the speech occurred away
from the office and on the employee's own time; where the
employee's position involved no policymaking authority or public
contact; where there is virtually no evidence of workplace
disruption resulting directly from the speech; and where it
ultimately required the investigatory resources of two police
departments to bring the speech to the attention of the community.
[2]I've argued that police departments should be allowed to fire beat
cops who publicly engage in racist behavior. But anonymous speech by
an employee of the police department's Management Information Systems
Division with no evidence of prejudice to the police department's
reputation or functioning is a different story. Pappas's views on race
relations were simply not relevant to his job qualifications, and
firing him therefore violated the First Amendment.
Comments open for four hours.
References
1. http://mason.gmu.edu/~dbernste/book/
2. http://www.cato.org/pub_display.php?pub_id=3173
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