IN SUPPORT OF AN IMPLIED STATE ... - Albany Law Review

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IN SUPPORT OF AN IMPLIED STATE CONSTITUTIONAL FREE SPEECH TORT IN PUBLIC EMPLOYMENT RETALIATION CASES HOWARD L. ZWICKEL* I. INTRODUCTION As a society, we consider freedom of speech to be one of our most cherished values.1 Indeed, the first provision to be ratified in the Bill of Rights, the First Amendment to the U.S. Constitution, secures freedom of speech and the press against limitation or restriction by Congress.2 As the Supreme Court has reminded us, free speech is a cornerstone of our democracy: “Those who won our independence had confidence in the power of free and fearless reasoning and communication of ideas to discover and spread political . . . truth.” . . . [A] broad conception of the First Amendment is necessary “to supply the public need for information and education with respect to the significant issues of the times. . . . Freedom of discussion, if it would fulfill its historic function in this nation, must embrace all issues about which information is needed or appropriate to enable the members of society to cope with the exigencies of their period.”3

* Former Chief, Deputy Chief and Special Counsel, Litigation Bureau, New York State Attorney General’s Office, and former Counsel, New York State Office of General Services. The views expressed herein are solely those of the author. The author wishes to thank Professor Evelyn M. Tenenbaum for her excellent ideas, edits and overall insightful comments, and Darren O’Connor, Esq. for his extremely helpful insights, ideas and edits. This Article is dedicated to three very important people in my life, my parents, Joseph and Helen Zwickel, and my wife. 1 See SHAD Alliance v. Smith Haven Mall, 66 N.Y.2d 496, 498, 488 N.E.2d 1211, 1212, 498 N.Y.S.2d. 99, 100 (1985) (“All members of the court agree that the right to free expression is one of this Nation’s most cherished civil liberties.”); ZECHARIAH CHAFEE, JR., FREE SPEECH IN THE UNITED STATES 6 (1967) (“[The First Amendment] is a declaration of national policy in favor of the public discussion of all public questions.”). 2 U.S. CONST. amend. I (“Congress shall make no law . . . abridging the freedom of speech, or of the press . . . .”). 3 Wood v. Georgia, 370 U.S. 375, 388 (1962) (quoting Thornhill v. Alabama, 310 U.S. 88, 95, 102 (1940)).

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Free speech by public employees on important public matters is an essential component of our right to free speech.4 Government employee speech of public importance can cover the full gamut from providing opinions and advice about the workings of a governmental program, policy, or practice, to identifying and disclosing instances of perceived gross mismanagement, abuse or wrongdoing in the workplace.5 Because of their intimate knowledge of how government programs operate, public employees have the ability to convey ideas and information that can improve government programs, and ensure that they are accountable to the public.6 As the Supreme Court recently observed: “There is considerable value . . . in encouraging, rather than inhibiting, speech by public employees. For ‘[g]overnment employees are often in the best position to know what ails the agencies for which they work.’”7 Despite the important contributions that public employees can make to ensuring that government programs operate efficiently and effectively, their ability to freely and frankly exchange information and ideas is often hampered by fear of job reprisals.8 To make matters worse, coworkers, fearful of losing their jobs or suffering other adverse employment consequences because of perceived or actual reprisals taken against others who have spoken, become less willing to speak to others about important matters in the

See Lane v. Franks, 134 S. Ct. 2369, 2377 (2014). See infra Part II. 6 See, e.g., Memorandum of State Executive Department, Whistleblower’s Law, ch. 660, 1984 N.Y. Sess. Law 3389, 3391 (McKinney) (“There is an inherent conflict for an employee who believes on the one hand that it is necessary to disclose information to protect the public, feels loyalty to the government for which he or she works, or harbors a concern that improper governmental conduct could result in serious harm or injury to the public welfare yet on the other must acknowledge the fear of reprisal for making disclosures.”); U.S. MERIT SYS. PROT. BD., BLOWING THE WHISTLE: BARRIERS TO FEDERAL EMPLOYEES MAKING DISCLOSURES 25 (2011), available at http://www.mspb.gov/netsearch/viewdocs.aspx?docnumber=662503&versi on=664475 (“Employees are the most valuable asset that agencies have to reduce fraud, waste, and abuse. . . . [F]actors related to an agency’s culture tend to be important to employees when they decide whether to report wrongdoing that they have observed. We therefore encourage agencies to do more to create a culture that encourages employees to come forward with valuable information that could make the agencies more effective and efficient.”). 7 Lane, 134 S. Ct. at 2377 (alteration in original) (quoting Waters v. Churchill, 511 U.S. 661, 674 (1994)). 8 See, e.g., Paul M. Secunda, Whither the Pickering Rights of Federal Employees?, 79 U. COLO. L. REV. 1101, 1127 (2008) (“[B]ased on findings from a 1992 report, . . . ‘many employees who observe wrongdoing do not report it, . . . many of those who do so perceive employer retaliation, albeit of a comparatively mild variety, and . . . many of those who do not report wrongdoing attribute their unwillingness to speak out to the fear of retaliation.’” (quoting Cynthia L. Estlund, Free Speech and Due Process in the Workplace, 71 IND. L.J. 101, 120 (1995))). 4 5

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workplace.9 While the Supreme Court has recently observed that “[s]peech by citizens on matters of public concern lies at the heart of the First Amendment,” and this includes “information related to or learned through public employment,”10 the Court has constructed a First Amendment standard in public employment retaliation cases that does not go far enough to protect public employee speech. This article will address some areas in which the First Amendment is not sufficiently protective of the free speech rights of public employees, and suggest that a more effective free speech cause of action be implied from article I, section 8 of the New York State Constitution. A meaningful state free speech constitutional tort, with enhanced state standards, could encourage more expressive activity by public employees, which would benefit both the government and the public.11 It could accomplish this objective by deterring efforts to chill free speech and providing compensation to victims of reprisals in situations that are not being adequately protected by the existing federal constitutional framework. Part II of this article discusses the challenges that public employees face when they express their views on a government program or policy, or report perceived wrongdoing in the workplace. This part also touches upon the various interests at stake when public employees are encouraged to speak. Part III of the article explores the First Amendment law in this area. It begins with a brief introduction and some historical

9 See, e.g., U.S. MERIT SYS. PROT. BD., supra note 6, at 11 (“The consequences of retaliation are typically felt most strongly by the whistleblower, but others can be affected as well. . . . [E]mployees who are not personally affected by the commission of a prohibited personnel practice may notice when it happens to others in the work unit, and such perceptions can affect the observer’s level of engagement. This is particularly true for the prohibited personnel practice of retaliation for whistleblowing.” (citation omitted)); Jamie Darin Prenkert et al., Retaliatory Disclosure: When Identifying the Complainant is an Adverse Action, 91 N.C. L. REV. 889, 929–30 (2013) (“Institutional organization and structure have a strong influence on would-be whistleblowers’ perceptions of the likelihood of reprisal and the actual likelihood of reprisal. For instance, if an individual perceives that previous whistleblowers in her organization have experienced reprisal, then she will be less likely to blow the whistle. Conversely, employees will be more likely to report wrongdoing in organizations that have policies and procedures that create the impression that a whistleblower will be taken seriously and assisted.”). 10 Lane, 134 S. Ct. at 2377. 11 See discussion infra Parts IV–V; see also Prenkert et al., supra note 9, at 928–29 (“Studies support the common sense notion that would-be whistleblowers engage in a costbenefit analysis when deciding whether to report wrongdoing. Those who report conclude that the potential benefits of doing so outweigh the potential costs. Those who remain silent come to the opposite conclusion. Thus, when an employee is confronted with the decision to report discrimination or file a charge, the analysis depends on expected chances of reprisal.”).

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background on the rights of public employees to speak in the workplace. This section continues with a discussion of the important legal developments in the First Amendment law of public employee speech, emphasizing the so-called Pickering12 balancing test and two issues that have emerged in post-Pickering cases, the exclusion of speech by government employees when performing their ordinary duties and the ability of public employers to defeat otherwise valid speech retaliation claims using evidence of adverse workplace impact. The two final subsections in this part address other issues that are relevant to the need for a state constitutional tort: the potential impact of the Mt. Healthy defense,13 the doctrine of qualified immunity, and New York’s public employee whistleblower statute. Part IV of the article turns to the text, history, and relevant case law interpretations of New York’s constitutional free speech provision to evaluate whether New York law could support a more expansive state free speech standard. The first section of this part discusses New York’s authority to establish independent constitutional law standards, and focuses upon a New York State Court of Appeals’ decision that adopted a broader free speech standard under the state constitutional provision than is provided by the First Amendment.14 The second section argues for a broader state free speech standard in public employment retaliation cases. The last section proposes several standards which would provide greater free speech protection for public employees in retaliation cases, and provides a justification for each standard. Part V of the Article supports establishing an implied free speech state constitutional tort. It includes a discussion of some of the main arguments likely to be raised in opposition to establishing such a claim. The second section explains why a constitutional tort is necessary and no alternative remedies would be as effective. II. CHALLENGES FACED BY PUBLIC EMPLOYEES WHO SPEAK OUT ABOUT MATTERS OF PUBLIC IMPORTANCE, AND THE STAKES INVOLVED IN ENCOURAGING SUCH SPEECH Government employees, by the nature of their jobs, are in a position to observe and learn about the operation of government Pickering v. Bd. of Ed. of Township High Sch. Dist. 205, 391 U.S. 563 (1968). Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 (1977). 14 People ex rel. Arcara v. Cloud Books, Inc., 68 N.Y.2d 553, 503 N.E.2d 492, 510 N.Y.S.2d 844 (1986). 12 13

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programs, how policies and practices work on the ground, and what changes can be made to improve the operation of government.15 However, studies have shown, and reports in the media have confirmed, that many public employees remain fearful of expressing their views or disclosing possible abuses or serious mismanagement because of job reprisals. A 2010 survey undertaken by the U.S. Merit Systems Protection Board (Merit Board), in which more than 40,000 federal employees responded,16 showed that of the 11.1% of employees who acknowledged that they observed wrongdoing or wasteful activities involving their agency in the past twelve months, a majority either did not report the activity or only told someone who lacked the authority to take corrective action.17 The survey also revealed that, of those respondents who reported an activity within the past twelve months, more than thirty-six percent perceived or suffered either threats or actual reprisals, and only seven percent were given credit by their agency management for coming forward.18 The findings from the Merit Board’s survey are consistent with stories that appear in the media of federal employees who claim to have suffered threats or actual reprisals after disclosing what they believed was wrongdoing or wasteful activity at their agencies. For example, the media recently reported on serious problems with access to, and delivery of, medical care for veterans due in large part to employees at the Veterans Administration (VA) informing the media about practices—such as falsified records—used to coverup long delays in scheduling appointments.19 According to one report, “[s]ome of the veterans have died waiting for their claim to

15 See, e.g., Lane, 134 S. Ct. at 2379 (“[The Court’s precedents] have recognized that speech by public employees on subject matter related to their employment holds special value precisely because those employees gain knowledge of matters of public concern through their employment.”). “[P]ublic employees are uniquely qualified to comment” on matters that the general public is interested in. San Diego v. Roe, 543 U.S. 77, 80 (2004) (per curiam). 16 See U.S. MERIT SYS. PROT. BD., supra note 6, at i n.2. 17 See id. at 4, 8. Data generated from the survey conducted of federal employees by the Merit Board depicted that more than one-third of the 11.1% of respondents who observed some wrongdoing or wasteful activity did not report the activity observed to anyone, and the majority of reports were made to family members, friends, coworkers and immediate supervisors. Id. The fewest reports were made to higher level agency officials, the agency inspector general, the Office of Special Counsel, the Government Accountability Office, or a law enforcement official. Id.; see also Secunda, supra note 8, at 1127 (“Currently, however, fear of retaliation in the federal workplace for unwanted speech remains a substantial issue in the federal civil service.”). 18 See U.S. MERIT SYS. PROT. BD., supra note 6, at 10–11. 19 See, e.g., Brian Mockenhaupt, Confessions of a Whistleblower: Dr. Sam Foote Reveals How He Went to War with the VA, AARP BULLETIN, Sept. 2014, at 26.

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be processed . . . .”20 Some of the VA employees who went to the media also complained that they had gone to supervisors previously but either their concerns were ignored or their supervisors tried to cover-up the long wait, and disciplined those employees who spoke up.21 One media report stated that investigators from the Office of Special Counsel22 are looking into allegations that VA supervisors retaliated against sixty-seven employees who complained about falsification of records and other improper and potentially illegal practices.23 Further, “[t]he Office of Special Counsel said it had blocked disciplinary actions against three VA employees who had complained, including one who was suspended for seven days after complaining to the VA’s inspector general about improper scheduling.”24

20 See Whistle-Blower Says VA Employees Changed Dates on Disability Claims, CBS NEWS (July 14, 2014), http://www.cbsnews.com/news/whistle-blower-says-va-employees-changeddates-on-disability-claims/ (discussing a statement of Kristen Ruell, an employee of the VA’s Pension Management Center in Philadelphia). A more recent report finds that “Veteran Affairs has been unable to substantiate allegations that 40 veterans may have died because of delays in care at the veterans medical center in Phoenix . . . .” Richard A. Oppel, Jr., No Link Found for Deaths and Veterans’ Care Delays, N.Y. TIMES, Aug. 26, 2014, at A14 (emphasis added). It was subsequently reported by a VA official “that delays in care had contributed to the deaths of patients at the department's medical center in Phoenix.” Richard A. Oppel, Jr., V.A. Officials Acknowledge Link Between Delays and Patient Deaths, N.Y. TIMES, Sept. 18, 2014, at A17. 21 See, e.g., Whistle-blower Says VA Employees Changed Dates on Disability Claims, supra note 20 (discussing testimony of employee at VA’s Pension Management Center in Philadelphia who claimed that she took photos of unopened mail that languished in boxes for years; instead of addressing the problem, VA supervisors allegedly “enacted a policy prohibiting taking photos”); see also Eric Lichtblau, V.A. Punished Critics on Staff, Doctors Assert, N.Y. TIMES, June 16, 2014, at A1 (“Staff members at dozens of Department of Veterans Affairs hospitals across the country have objected for years to falsified patient appointment schedules and other improper practices, only to be rebuffed, disciplined or even fired after speaking up, according to interviews with current and former staff members and internal documents.”); Mockenhaupt, supra note 19, at 28 (“Foote says health concerns . . . and retaliation from the VA forced his retirement a year earlier than he’d hoped. . . . ‘It’s a huge risk . . . . I was one of the few people who knew enough about it, and if they retaliated I could retire a little early.’”). 22 The U.S. Office of Special Counsel “is an independent investigative and prosecutorial federal agency that protects the merit system for over 2.1 million federal employees.” CAROLYN LERNER & ERIC BACHMAN, U.S. OFFICE OF SPECIAL COUNSEL, VA WHISTLEBLOWERS: EXPOSING INADEQUATE SERVICE PROVIDED TO VETERANS AND ENSURING APPROPRIATE ACCOUNTABILITY 1 (2014), available at https://osc.gov/Resources/FINAL_OSC_L erner%20Bachman_Testimony_VA%20whistleblowers_07%2008%2014.pdf (representing the testimony of Carolyn Lerner, special counsel, and Eric Bachman, deputy special counsel, of the U.S. Office of Special Counsel to the U.S. House of Representatives Committee on Veterans’ Affairs). 23 See V.A. Is Accused of Retaliating in 67 Complaint Cases, N.Y. TIMES, July 9, 2014, at A16. 24 See Acting V.A. Chief: Reprisals Against Whistleblowers Are Not Acceptable, VINDY.COM,

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New York case law also includes several examples of public sector employees who claim to have been subjected to adverse job actions as a result of expressive activities.25 The media has also reported on alleged reprisals against state and local government public employees who have complained about what they perceive to be improper policies and practices at their respective agencies.26 The public’s right to know what is happening in government is impeded when public employees are fearful of speaking up on matters of public importance.27 The Supreme Court has emphasized that the “interest at stake”28 in public employee retaliation cases is not just between the government entity as employer and the public employee as speaker, but also includes “the public’s interest in receiving the well-informed views of government employees engaging in civic discussion.”29 When public employees hesitate to give their opinions about the affairs of government, society bears the costs through the loss of potentially critical information that can add to the public discourse, reform government programs to better achieve their objectives, save taxpayer dollars, and improve peoples’ (June 7, 2014), http://www.vindy.com/news/2014/jun/07/acting-va-chief-reprisals-againstwhistl/. Job reprisals against perceived whistleblowers are not restricted to the public sector. See, e.g., Nayna C. Philipsen & Donald Soeken, Preparing to Blow the Whistle: A Survival Guide for Nurses, 7 J. NURSE PRACTITIONERS 740, 740 (“Fear of retaliation and the stigma associated with being a ‘troublemaker’ or a ‘whistleblower’ are realities that contribute to the underreporting of problems in health care.”). 25 See, e.g., N.Y. LAB. LAW § 740 note (McKinney 2014) (Retaliatory Personnel Action); N.Y. CIV. SERV. LAW § 75-b note (McKinney 2014) (Adverse Personnel Action); see infra Part III.F; see also Governor’s Memoranda, Whistleblowers Law, ch. 660, 1984 N.Y. Sess. Law 3624, 3625 (McKinney) (“[New York whistleblower statutes will] give needed protection to employees who wish to act as law-abiding citizens without fear of losing their jobs.”). 26 See, e.g., Joseph Goldstein, Officer’s Case to Clarify Whistle-Blowers’ Rights, N.Y. TIMES, Oct. 14, 2013, at A23 (“Officer [Craig] Matthews is one of at least five current or retired New York City police officers who have had suits pending in federal court over the past year, seeking protection from a department that they say punishes those who report wrongdoing up the chain of command.”); see also Clara A. Smith, OPWDD Employee Outlines Alleged Abuse, Retaliation, LEGIS. GAZETTE, Apr. 2, 2013, at 9 (“[State employee Jeffery] Monsour has been retaliated against because he has revealed abuse and waste in the OPWDD system that has harmed vulnerable patients and residents at its facilities . . . .”). 27 See, e.g., Elletta Sangrey Callahan et al., Whistleblowing: Australian, U.K., and U.S. Approaches to Disclosure in the Public Interest, 44 VA. J. INT’L L. 879, 905 (2004) (“Obviously, employers seek to avoid negative publicity, whether or not it is justified. The public interest is served, however, when malfeasance is made known to affected parties and government agencies are able to take appropriate corrective action.”); Prenkert et al., supra note 9, at 928 (“First, the threat of reprisal for reporting wrongful acts creates a disincentive for victims to report them. This is true regardless of whether reprisals are carried out in fact.”). 28 San Diego v. Roe, 543 U.S. 77, 82 (2004) (per curiam). 29 Garcetti v. Ceballos, 547 U.S. 410, 419 (2006); see Governor’s Memoranda, Whistleblowers’ Law—Public Employers, ch. 899, 1986 N.Y. Sess. Laws 3215, 3215 (McKinney) (“[The] strengthening of [New York’s] Whistleblower Law . . . gives the public better reason to believe that misconduct will be reported.”).

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lives.30 III. THE FIRST AMENDMENT AND THE RIGHT OF PUBLIC EMPLOYEES TO SPEAK ABOUT MATTERS OF PUBLIC CONCERN A. Introduction Public employees who wish to express their views in order to improve government programs are fostering the exchange of ideas and information that is “the essence of self-government.”31 However, it was not until the middle of the last century that public employees could even consider speaking up at work without fear of losing their jobs.32 B. A Brief History of Restrictions on Public Employees’ Expression Despite the goals of the First Amendment free speech clause, 33 over much of our nation’s history people seeking government jobs as well as those employed by government were expected to forego publicly speaking about important issues of the day or publicly discussing matters that arose in the workplace without the permission of their employer.34 Until the 1950s, there was no constitutional bar to a governmental employer prohibiting speech deemed to be detrimental to the governmental employer’s best interests.35 Governmental employers also had considerable leeway

30 See Roe, 543 U.S. at 82 (“[P]ublic employees are often the members of the community who are likely to have informed opinions as to the operations of their public employers, operations which are of substantial concern to the public. Were they not able to speak on these matters, the community would be deprived of informed opinions on important public issues.”); United States v. Nat’l Treasury Emps. Union, 513 U.S. 454, 470 (1995) (“The largescale disincentive to Government employees’ expression also imposes a significant burden on the public’s right to read and hear what the employees would otherwise have written and said.”). 31 Garrison v. Louisiana, 379 U.S. 64, 74–75 (1964). 32 See infra Part III.B. 33 See supra notes 3, 10 and accompanying text. 34 See, e.g., Adler v. Bd. of Educ., 342 U.S. 485, 492 (1952) (“It is equally clear that [persons employed or seeking public employment in New York] have no right to work for the State in the school system on their own terms. They may work for the school system upon the reasonable terms laid down by the proper authorities of New York. If they do not choose to work on such terms, they are at liberty to retain their beliefs and associations and go elsewhere. Has the State thus deprived them of any right to free speech or assembly? We think not.” (citation omitted)). 35 See Garcetti v. Ceballos, 547 U.S. 410, 417 (2006) (“[F]or many years ‘the unchallenged dogma was that a public employee had no right to object to conditions placed upon the terms of employment—including those which restricted the exercise of constitutional rights.’” (quoting Connick v. Myers, 461 U.S. 138, 143 (1983))).

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in refusing to hire a job applicant or dismissing a current employee because of the person’s expressive activities.36 Public employees’ rights to engage in expressive activities outside of work without being denied, or losing, a government job began to slowly change in the 1950s. Some lawsuits succeeded in challenging the requirement that a public employee take a loyalty oath swearing they had not been affiliated with the Communist Party or other “subversive” organizations as a condition of public employment.37 Before these lawsuits were successful, public employees could lose their jobs for refusing to sign loyalty oaths.38 In the early 1960s, the U.S. Supreme Court went a step further and established that statements made by public officials on matters of public concern can receive First Amendment protection even if the statements are considered intemperate and are directed at superiors.39 For example, in Garrison v. Louisiana, the Supreme Court, in an opinion by Justice Brennan, struck down as a violation of the First Amendment a seditious libel law that was used to criminally punish a district attorney for his public criticism of the judiciary.40 The Court’s decision confirmed the critical role that speech on matters of public affairs plays in our democracy: For speech concerning public affairs is more than selfexpression; it is the essence of self-government. The First and Fourteenth Amendments embody our “profound national commitment to the principle that debate on public issues 36 See, e.g., Adler, 342 U.S. at 492 (“Such persons are or may be denied, under the statutes in question, the privilege of working for the school system of the State of New York . . . .”). 37 See, e.g., Lane v. Franks, 134 S. Ct. 2369, 2377 (2014) (“[P]ublic employees do not renounce their citizenship when they accept [public] employment . . . .”); Connick, 461 U.S. at 144; Keyishian v. Bd. of Regents, 385 U.S. 589, 606–07 (1967) (“We [previously] struck down a statutorily required oath binding the state employee not to become a member of the Communist Party . . . .”); Wieman v. Updegraff, 344 U.S. 183, 191–92 (1952). In Wieman, the Court struck down an Oklahoma loyalty oath as a violation of due process, stating that “constitutional protection does extend to the public servant whose exclusion pursuant to a statute is patently arbitrary or discriminatory.” Wieman, 344 U.S. at 192. 38 See, e.g., Garner v. Bd. of Pub. Works, 341 U.S. 716, 720–21 (1951). 39 See Garrison v. Louisiana, 379 U.S. 64, 77–78 (1964); see also Wood v. Georgia, 370 U.S. 375, 394–95 (1962). In Wood, the Court reversed a contempt citation of the county sheriff who allegedly had interfered with the fair administration of justice by writing and distributing a letter criticizing a state judge’s decision to charge a grand jury with investigating “Negro bloc voting” in elections, stating that upon “examination of the content of petitioner’s statements and the circumstances under which they were published [we] conclude that they did not present a danger to the administration of justice that should vitiate his freedom to express his opinions in the manner chosen.” Wood, 370 U.S. at 395. 40 Garrison, 379 U.S. at 76–79 (striking down Louisiana criminal libel law, as applied to the district attorney who publicly criticized eight judges of the Louisiana Criminal District Court of Orleans Parish, because the libel law failed to excuse truthful statements as well as false statements that were made negligently).

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should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”41 C. Pickering v. Board of Education Applies the First Amendment to Protect Public Employees Who Speak on Matters of Public Concern Then, in 1968, the Supreme Court decided Pickering v. Board of Education. Pickering held that public employees cannot be dismissed from their jobs because of what they say outside of work unless their employers can show disruption to their workplace—for example, that the speech interfered with working relations, maintaining discipline with superiors, or harmony among coworkers.42 The Court established a balancing test under the First Amendment between the right of the public employee to speak and the right of the public employer to operate its enterprise efficiently.43 This balancing test applies when public employees were disciplined for expressive activities on matters of public concern.44 Pickering, a high school teacher in Illinois, wrote a letter to a local newspaper in which he publicly criticized “the school board’s handling of prior bond issue proposals and its subsequent allocation of financial resources between the schools’ educational and athletic programs.”45 He was dismissed by the school board after a full hearing based on its determination “that the publication of the letter was detrimental to the efficient operation and administration of the schools of the district . . . .”46 In reversing that determination, Justice Marshall, writing for the Court, focused on the value that inures to public discourse and debate when knowledgeable persons give informed opinions about issues that concern the public.47 Teachers do not, said the Court,

Id. at 74–75 (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964)). Pickering v. Bd. of Ed. of Township High Sch. Dist., 391 U.S. 563, 569–70, 572–73 (1968). 43 Id. at 568. 44 See, e.g., Connick v. Myers, 461 U.S. 138, 144–45 (1983) (noting that Pickering was rooted in cases where the government sought to suppress the rights of public employees to participate in public affairs). 45 Givhan v. W. Line Consol. Sch. Dist., 439 U.S. 410, 414 (1979). 46 Pickering, 391 U.S. at 564 (internal quotations omitted). 47 Id. at 571–72. The Court considered the subject matter of the letter Pickering wrote to the local newspaper, whether the school system requires additional funds or whether there had been an improper allocation of a previous bond fund to athletic programs, to be 41 42

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forfeit their First Amendment rights “as citizens to comment on matters of public interest in connection with the operation of the public schools in which they work . . . .”48 But the government, as employer, has interests “in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general.”49 The court’s role in these cases was “to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.”50 The Court determined that the balance must be struck in favor of Pickering because he had written like “any other taxpayer”51 on a matter of public concern, and the school board had failed to demonstrate that what he said was disruptive to Pickering’s ability to function effectively as a teacher or the school’s responsibility to maintain harmony in the workplace.52 D. Post-Pickering Cases Attempt to Define the Parameters of the Balancing Test Several issues have emerged in the aftermath of Pickering and this article will touch on three of these issues. First, under what circumstances does a public employee speak as a “citizen” on a matter of public concern? Second, how much deference will the courts give to the employer’s concerns for an efficient and effective workplace in applying the Pickering balancing test? Third, are there other defenses that governmental employers can raise when public employees claim that they were dismissed or suffered some other adverse employment action because of their speech? In each of these areas, the Court has provided guidance that raises concerns about the effectiveness of the First Amendment remedy in unquestionably “a matter of legitimate public concern.” Id. at 569–71. 48 Id. at 568. 49 Id. 50 Id. 51 Id. at 572. 52 Id. at 570–73. The Court noted that Pickering’s letter was not critical of his immediate superiors or coworkers and therefore was not likely to raise issues of maintaining harmony and discipline in the workplace. Id. at 570. The Court further mentioned that much of what Pickering wrote was accurate, but that even with respect to those portions of the letter shown to be incorrect, the school board had failed to produce evidence that the incorrect statements led to controversy or conflict among teachers, board members or administrators, or otherwise caused the professional reputation of the board members and the school’s superintendent to suffer damage. Id. In fact, the public responded to the letter with “massive apathy and total disbelief.” Id.

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protecting public employee speech. 1. Citizen Speech vs. Government Employee Speech To trigger the Pickering balancing test, the public employee’s speech must be considered tantamount to speech by a citizen.53 In Pickering, the Court appeared to equate citizen with a member of the general public, rather than a public employee, because Pickering had written his own letter to a local newspaper just like any member of the general public might do.54 Therefore, the Court had no problem finding that Pickering was speaking as a citizen.55 His letter to the local newspaper was quintessentially the type of speech that “any other taxpayer”56 would engage in if he/she wished to express his/her opinion about local matters. Although Pickering’s position at the high school may have given him some more access than the general public to certain details about how the school system spent the money raised in the prior bond proposals, the Court concluded that the plaintiff’s teaching employment “is only tangentially and insubstantially involved in the subject matter of the public communication” he made to the newspaper, and therefore, “it is necessary to regard the teacher as the member of the general public he seeks to be.”57 Pickering did not expressly define the word citizen and after the decision it was not clear whether the First Amendment would apply only to public employees who speak about matters outside the workplace that are “tangentially and insubstantially” related to their jobs.58 If that were the case, it would mean that an employee could be dismissed for speaking about a matter of public importance which relates more directly to his/her job. However, in several postPickering cases, it became clear that Pickering could apply to speech connected to the workplace. For example, in Givhan v. Western Line Consolidated School District the employee, a public school teacher, met privately with her principal to express concerns about what she perceived to be racially discriminatory policies and practices at the school.59 Givhan was subsequently dismissed from her job, and sought 53 54 55 56 57 58 59

Id. at 568. Id. at 572. Id. at 573. Id. at 572. Id. at 574. See id. Givhan v. W. Line Consol. Sch. Dist., 439 U.S. 410, 412–13 (1979).

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reinstatement for violation of her First Amendment right to free speech.60 The Supreme Court seemed to assume that Givhan had spoken as a “citizen” and rejected the school’s argument that Givhan’s speech was not covered by Pickering because it was made privately, and therefore did not constitute a matter of public concern: “Neither the [First] Amendment itself nor our decisions indicate that this freedom [of speech] is lost to the public employee who arranges to communicate privately with his employer rather than to spread his views before the public.”61 Similarly, in Rankin v. McPherson,62 the Court assumed that a clerical employee who worked for a constable in Texas was speaking as a citizen when she remarked to a co-worker, following an attempted assassination on the President, that if another attempt was made, “I hope they get him.”63 The employee was dismissed for making this remark.64 In applying the Pickering balancing test, the Court instead focused on 1) whether the remark was “a matter of public concern,” and 2) the nature of the employer’s interests in dismissing McPherson for her statement.65 The speech in these cases was not directly related to the employees’ usual job duties, and a question remained whether the speech of a public employee who raised concerns on a matter that pertained more directly to what he/she did at work would come within the purview of the Pickering balancing test. In Connick v. Myers, the Court gave an indication that the speech of government employees about their jobs might be treated differently. In that case, an assistant district attorney was fired for preparing and circulating a questionnaire to her coworkers seeking information about office morale and their confidence in supervisors.66 In responding to Connick’s argument that the Pickering balancing test did not apply because Myers’ speech concerned “internal office matters,”67 the Court stated that “there is much force to Connick’s

Id. at 411–12. Id. at 415–16. 62 Rankin v. McPherson, 483 U.S. 378 (1987). 63 Id. at 381. 64 Id. at 382. 65 Id. at 384, 388; see also Connick v. Myers, 461 U.S. 138, 140–42, 147–48 (1983) (showing that the Court assumed assistant district attorney, who was dismissed based on a questionnaire she distributed at the office seeking input from her colleagues about office morale and transfer policy as well as their confidence in supervisors, was a citizen and focused instead on whether her speech was a matter of concern to the public). 66 Connick, 461 U.S. at 140–41. 67 Id. at 143. 60 61

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submission.”68 The Court noted that Pickering’s use of the phrase “‘as a citizen, in commenting upon matters of public concern,’ was not accidental” and reflected both the “historical evolvement” of public employee free speech rights, “and the common-sense realization that government offices could not function if every employment decision became a constitutional matter.”69 Connick concluded that most of Myers’ speech was related to a personnel dispute and did not constitute “a matter of public concern,”70 but the court did not separately address whether Myers’ speech affected her status as a “citizen” under the Pickering standard. In 2006, almost forty years after Pickering, the Court expressly decided whether an employee whose speech is closely connected to his work responsibilities, is speaking as a “citizen.” In Garcetti v. Ceballos, the Court determined that, for First Amendment purposes, there was a clear distinction between government employees speaking as members of the general public and government employees speaking in the course of performing their official job duties.71 The issue in Garcetti was whether a public employee who claimed that adverse employment actions were taken in retaliation for his speech72 could sue under the First Amendment where the speech was made “pursuant to the employee’s official duties.”73 Plaintiff Ceballos, a deputy district attorney who functioned as a supervisor during the period at issue for the Los Angeles County District Attorney’s Office, wrote a “disposition memorandum” that both challenged the accuracy of an affidavit submitted by the sheriff’s department regarding a search warrant and recommended dismissal of the underlying criminal case.74 After a meeting between representatives of the district attorney’s office and the sheriff’s department, one of Ceballos’ supervisors decided to proceed with the criminal prosecution pending disposition of defendant’s motion to dismiss the charges.75 At the subsequent hearing before the trial court, Ceballos was called by defense counsel and testified concerning his observations about the accuracy of the affidavit.76

68 69 70 71 72 73 74 75 76

Id. Id. Id. at 147–48. Garcetti v. Ceballos, 547 U.S. 410, 421 (2006). Id. at 415. Id. at 413. Id. at 413–14. Id. at 414. Id. at 414–15.

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Writing for the five-member majority, Justice Kennedy stated that Pickering and several cases that followed it were premised on the assumption that the government worker was speaking as a citizen, that is, just like any other member of the public, and not as a government employee.77 The Court explained that when a public employee speaks about a matter that is “pursuant to” his/her “official [job] duties,” he/she is no longer speaking as a citizen and his/her speech receives no protection under the First Amendment.78 That is because “[w]hen a citizen enters government service, the citizen by necessity must accept certain limitations on his or her freedom.”79 Public employers, said Justice Kennedy, “need a significant degree of control over their employees’ words and actions” since public employees “often occupy trusted positions in society” and “they can express views that contravene governmental policies or impair the proper performance of governmental functions.”80 Because Ceballos’ memorandum was found to be written pursuant to his official job responsibilities, the Court determined that the First Amendment did not apply to his speech.81 The dissenting Justices in Garcetti took the majority to task for trying to draw a distinction between speech by public employees functioning as citizens and speech by government employees in the course of performing their jobs. Justice Stevens wrote that “[t]he notion that there is a categorical difference between speaking as a citizen and speaking in the course of one’s employment is quite wrong.”82 Indeed, if the Court had applied the Pickering balance, it

Id. at 418–19. Id. at 421–22 (“[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. . . . Restricting speech that owes its existence to a public employee’s professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen. It simply reflects the exercise of employer control over what the employer itself has commissioned or created.”). 79 Id. at 418. 80 Id. at 418–19. 81 Id. at 421 (“The controlling factor in Ceballos’ case is that his expressions were made pursuant to his duties as a calendar deputy.”). The majority did recognize that the line it had drawn was subject to possible abuse, and cautioned that any attempt by a government employer to define an employee’s job duties broadly in order to avoid First Amendment scrutiny would be rejected. Id. at 424–25. 82 Id. at 427 (Stevens, J., dissenting); see also id. at 432 (Souter, J., dissenting) (“[C]ategorically separating the citizen’s interest from the employee’s interest ignores the fact that the ranks of public service include those who share the poet’s ‘object . . . to unite [m]y avocation and my vocation’; these citizen servants are the ones whose civic interest rises highest when they speak pursuant to their duties, and these are exactly the ones government employers most want to attract.” (alteration in original)). 77 78

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might have ruled differently because, as the circuit court determined, Ceballos’ memorandum addressed a matter of public concern and the district attorney had “‘failed even to suggest disruption or inefficiency in the workings of the District Attorney’s Office’ as a result of the memo.”83 Determining when speech is or is not “pursuant to” an employee’s “official job duties” is a slippery slope that fails to provide employees reasonable guidance as to when their speech will be protected.84 Garcetti’s standard does not acknowledge the complex nature of government work, as well as the varied and oftentimes changing work duties and work responsibilities performed by government employees.85 The Garcetti standard is difficult to apply in practice. Lower courts have struggled to develop workable standards to determine when speech activity is made “pursuant to” an employee’s “official duties.”86 The Court’s most recent decision in this area, Lane v. Franks, tries to clarify the meaning of speech “pursuant to” an employee’s “official duties” but it still leaves many unanswered questions. The plaintiff in Lane claimed that his job as director of Community Intensive Training for Youth (CITY) was terminated because of

83 Id. at 416 (majority opinion) (quoting Ceballos v. Garcetti, 361 F.3d 1168, 1180 (9th Cir. 2004), rev’d, 547 U.S. 410 (2006)). 84 See U.S. MERIT SYS. PROT. BD., supra note 6, at 11; Leading Cases, 120 HARV. L. REV. 273, 279 (2006) (“The rule that emerged in Garcetti failed to advance the employee’s interest in speaking, the wider public interest in hearing such speech, or the government’s interest in efficient administration.”). 85 See, e.g., Eric Marshall, Note, Rescuing the Union Grievance from the Shoals of Garcetti: A Call for the Return to Reason in Public Workplace Speech Jurisprudence, 57 N.Y.L. SCH. L. REV. 905, 923–24 (2012/2013) (“[I]f the speech by a public employee is pursuant to her official duties, the court no longer reaches the question of whether her speech addressed a matter of public concern. This official duties inquiry reduces the scope of First Amendment protection for public employees. But by failing to define its two key terms—‘pursuant to’ and ‘official duties’—the Court provided little guidance to the lower courts in administering this new test, which has led to conflicting opinions.”); see also Leading Cases, supra note 84, at 281 (“[E]arly results suggest Garcetti will not provide sufficient clarity to [prevent disruptions in the workplace over threatened First Amendment litigation as a result of allegedly adverse employment action linked to job-related speech]. Litigants in several subsequent cases have already clashed over whether employees were speaking pursuant to job duties . . . .”). 86 See, e.g., Looney v. Black, 702 F.3d 701, 718 (2d Cir. 2012) (“To determine whether speech was made ‘pursuant to’ one’s official job duties, it is necessary to ascertain whether the speech at issue ‘owed its existence to [the plaintiff’s] job duties and was made in furtherance of those duties.’” (alteration in original) (quoting Ross v. Breslin, 693 F.3d 300, 308 (2d Cir. 2012))); Nagle v. Marron, 663 F.3d 100, 106–07 (2d Cir. 2011) (“Our Court has explained that, even if a public employee’s speech ‘is not required by, or included in, [his] job description, or [made] in response to a request by the employer,’ he speaks as an employee and not as a citizen if the speech is ‘part-and-parcel of his concerns about his ability to properly execute his duties.’” (alterations in original) (quoting Weintraub v. Bd. of Educ., 593 F.3d 196, 203 (2d Cir. 2010))).

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truthful testimony he gave in court, under subpoena, with respect to a former employee who was terminated for misconduct and later indicted for wrongdoing that occurred when she worked for CITY. 87 The information Lane provided in his court testimony was based upon an audit he had authorized at CITY and information he had gained from that audit.88 However, Lane did not testify in court under ordinary circumstances; testifying under subpoena was not a regular part of his day-to-day job duties.89 The Eleventh Circuit ruled that Lane’s First Amendment challenge should be dismissed, inter alia, because even if Lane’s speech was not part of his regular duties, it was clearly based on activities he engaged in within the scope of his official responsibilities as director of CITY.90 Therefore, according to the circuit court of appeals, Lane could receive no First Amendment protection because his speech “‘owes its existence to [the] employee’s professional responsibilities’ and is ‘a product that the employer himself has commissioned or created.’”91 Justice Sotomayor’s opinion for a unanimous Court disagreed with that analysis and limited the reach of Garcetti’s “pursuant to” standard.92 The Court noted that while Lane’s testimony obviously related to his work, testifying in court proceedings was not part of Lane’s “ordinary job responsibilities.”93 Based on that finding, the Court concluded that Lane’s court testimony was speech by a citizen and not speech by a government employee pursuant to his official responsibilities “even when the testimony relates to his public employment or concerns information learned during that employment.”94 The Court also took special note of the importance of encouraging public employees to speak about the affairs of government:

Lane v. Franks, 134 S. Ct. 2369, 2375–76 (2014). Id. at 2375. 89 Id. at 2378 n.4. 90 Id. at 2376–77. 91 Id. at 2376 (alteration in original) (quoting Lane v. Cent. Ala. Cmty. Coll., 523 F. App’x 709, 711 (11th Cir. 2013), aff’d in part, rev’d in part sub nom. Lane v. Franks, 134 S. Ct. 2369 (2014)). 92 Lane, 134 S. Ct. at 2378. A concurring opinion written by Justice Thomas, and joined by Justices Scalia and Alito, emphasized that the Court’s decision was limited to the situation of an employee whose testimony was not part of his ordinary job duties, and that a different question would be presented if testifying was part of the employee’s ordinary job responsibilities. Id. at 2383–84 (Thomas, J., concurring). 93 Id. at 2377–2378 & n.4 (majority opinion). 94 Id. at 2378; see also id. at 2379 (“[A]nyone who testifies in court bears an obligation, to the court and society at large, to tell the truth.”). 87 88

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It would be antithetical to our jurisprudence to conclude that the very kind of speech necessary to prosecute corruption by public officials—speech by public employees regarding information learned through their employment—may never form the basis for a First Amendment retaliation claim. Such a rule would place public employees who witness corruption in an impossible position, torn between the obligation to testify truthfully and the desire to avoid retaliation and keep their jobs.95 Thus, Lane clarified Garcetti’s “pursuant to” standard by explaining that public employee speech which just “relates to” an employee’s job or is based on “information learned” in the course of fulfilling one’s job, is within the scope of First Amendment protection if it involves a matter of public concern.96 Despite Lane’s attempt to limit the reach of Garcetti, the distinction between citizen speech and public employee speech continues to make little sense. Job duties can be very broad and changing, and employees should not have to guess whether something they say or write that is a matter of public importance will be considered “pursuant to” their “ordinary job duties”—and therefore not protected by the First Amendment—or will instead be considered to just “relate” to their job duties or be based on “information learned” in the course of their employment.97 2. The Government Employer’s Defense Under Pickering A second area in which the First Amendment standards for public employee speech are of concern, involves the broad scope of the employer’s Pickering defense and the fact that the employer has the same burden of proof as the employee, that is, the preponderance of the evidence standard.98 Under Pickering, the employer’s burden is to show that any Id. at 2380. See id. at 2378–80. 97 See id. 98 See, e.g., Morris v. Lindau, 196 F.3d 102, 110 (2d Cir. 1999) (“[A] plaintiff making a First Amendment retaliation claim under § 1983 must initially demonstrate by a preponderance of the evidence that: (1) his speech was constitutionally protected, (2) he suffered an adverse employment decision, and (3) a causal connection exists between his speech and the adverse employment determination against him, so that it can be said that his speech was a motivating factor in the determination. If a plaintiff establishes these three factors, the defendant has the opportunity to show by a preponderance of the evidence that it would have taken the same adverse employment action ‘even in the absence of the protected conduct.’” (quoting Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977))). 95 96

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adverse employment action was necessary for purposes of “promoting the efficiency of the public services it performs through its employees,”99 a standard that looks at such matters as maintaining discipline by supervisors, allowing coworkers to perform their jobs in harmony, ensuring that close working relationships that require loyalty and confidence are continued, or resolving a situation that interferes with the effective and efficient operation of the entity.100 The public employer need not show actual harm but can satisfy its burden of proof by demonstrating that such harm is “likely” to occur101 based on its reasonable “prediction of the disruption that such speech will cause . . . .”102 To be sure, employers should not have to delay taking action against employees who are disruptive or fail to properly perform their job until actual harm to the workplace “is manifest.”103 However, it can be very difficult for a public employee to respond to an employer’s arguments that predict what is likely to occur in the workplace as a result of the employee’s speech, and therefore, the predictive

99 Pickering v. Bd. of Ed. of Township High Sch. Dist., 391 U.S. 563, 568 (1968). Pickering discusses the employee’s interest in speaking on a matter of public concern, which is then balanced against “the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Id. 100 See Rankin v. McPherson, 483 U.S. 378, 388 (1987) (“[The Court looks at] whether the statement impairs discipline by superiors or harmony among co-workers, has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, or impedes the performance of the speaker’s duties or interferes with the regular operation of the enterprise.” (citing Pickering, 391 U.S. at 570–73)); Connick v. Myers, 461 U.S. 138, 150 (1983) (“The Pickering balance requires full consideration of the government’s interest in the effective and efficient fulfillment of its responsibilities to the public.”). 101 See, e.g., Anemone v. Metro. Transp. Auth., 629 F.3d 97, 115 (2d Cir. 2011) (“[Under Pickering] defendants may . . . escape liability if they can demonstrate that . . . the plaintiff’s expression was likely to disrupt the government’s activities and that the harm caused by the disruption outweighs the value of the plaintiff’s expression.” (quoting Skehan v. Vill. of Mamaroneck, 465 F.3d 96, 106 (2d Cir. 2006))); Pappas v. Giuliani, 290 F.3d 143, 151 (2d Cir. 2002) (“The employee’s speech must be of such nature that the government employer reasonably believes that it is likely to interfere with the performance of the employer’s mission.”); Santer v. Bd. of Educ. of E. Meadow Union Free Sch. Dist., 23 N.Y.3d 251, 266, 13 N.E.3d 1028, 1039, 990 N.Y.S.2d 442, 453 (2014) (“[T]he public employer need only ‘make a substantial showing that the speech is . . . likely to be disruptive’ to satisfy the balancing test and meet its burden under Pickering.” (quoting Waters v. Churchill, 511 U.S. 661, 674 (1994))). 102 Anemone, 629 F.3d at 115 (quoting Johnson v. Ganim, 342 F.3d 105, 114 (2d Cir. 2003)). The employer must also show that “the potential for disruption outweighs the value of the speech; and . . . the employer took the adverse employment action not in retaliation for the employee’s speech, but because of the potential for disruption.” Anemone, 629 F.3d at 115 (quoting Johnson, 342 F.3d at 114); see also Locurto v. Giuliani, 447 F.3d 159, 179 (2d Cir. 2006) (“[T]he disruption need not be actual; the Government may legitimately respond to a reasonable prediction of disruption.”). 103 Santer, 23 N.Y.3d at 266, 13 N.E.3d at 1039, 990 N.Y.S.2d at 453 (quoting Lewis v. Cowen, 165 F.3d 154, 163 (2d Cir. 1999)).

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standard is a matter of concern for efforts to promote public employee speech in the workplace.104 In addition to having broad criteria in support of their defense to a claim that they retaliated against an employee because of his/her speech, public employers need only satisfy their burden of proof by a preponderance of the evidence.105 The preponderance of the evidence standard establishes a roughly equal allocation of the risk between litigants, and is the norm where private parties are involved in a civil monetary dispute.106 Allocating the risk of loss roughly equally, however, gives insufficient weight to the importance of the underlying constitutional right at stake.107 It also does not take sufficient account of the fact that the public employer has the ability to take steps to ensure that supervisors do not engage in retaliatory conduct through its hiring, discipline, and training of employees.108 104 At the same time, where the employee’s speech involves disclosure of serious wrongdoing, the balance will most likely be struck in the employee’s favor. See, e.g., Connick, 461 U.S. at 151; Jackler v. Byrne, 658 F.3d 225, 242 (2d Cir. 2011) (“If defendants are proven to have caused Jackler’s termination in retaliation for his refusal to retract his truthful Report and make false statements in order to conceal [one of the defendant’s] use of excessive force, their actions cannot be seen as promoting ‘integrity’ in the discharge of [Middletown Police Department’s] responsibilities, or furthering the ‘proper performance of governmental functions.’” (citation omitted) (quoting Garcetti v. Ceballos, 547 U.S. 410, 419 (2006))); McGreal v. Ostrov, 368 F.3d 657, 680 (7th Cir. 2004) (“The interest of the employee in speaking out to uncover government malfeasance has often been held to outweigh the interest of the employer in maintaining harmony in the workplace.”); Lewis, 165 F.3d at 162 (“The more the employee’s speech touches on matters of significant public concern, the greater the level of disruption to the government that must be shown.”); see also McGreal, 368 F.3d at 680–81 (“Speech that accurately exposes official impropriety or corruption . . . has generally been accorded the greatest level of First Amendment protection.” (quoting Jefferson v. Ambroz, 90 F.3d 1291, 1298 (7th Cir. 1996) (Rovner, J., concurring))). 105 See Addington v. Texas, 441 U.S. 418, 423 (1979). 106 See id. (“At one end of the spectrum is the typical civil case involving a monetary dispute between private parties. Since society has a minimal concern with the outcome of such private suits, plaintiff’s burden of proof is a mere preponderance of the evidence. The litigants thus share the risk of error in roughly equal fashion.”); see also Michael S. Pardo, Pleadings, Proof, and Judgment: A Unified Theory of Civil Litigation, 51 B.C. L. REV. 1451, 1473–74 (2010) (“The preponderance rule also divides the risk of error roughly equally among the parties. This allocation is justified because of the perceived relative importance, significance, or costs of the two types of errors (false positives and false negatives), as well as the desire to create a fair and neutral forum in which to resolve civil disputes.”). 107 See Scott M. Matheson, Jr., Procedure in Public Person Defamation Cases: The Impact of the First Amendment, 66 TEX. L. REV. 215, 240 (1987) (“[W]hen important values are at stake, allocating the risks of uncertainty without considering substantive preferences is inconceivable.”); see also Speiser v. Randall, 357 U.S. 513, 525 (1958) (“In all kinds of litigation it is plain that where the burden of proof lies may be decisive of the outcome. There is always in litigation a margin of error, representing error in factfinding, which both parties must take into account.” (citations omitted)). 108 See Brown v. State, 89 N.Y.2d 172, 194, 674 N.E.2d 1129, 1142–43, 652 N.Y.S.2d 233, 236–37 (1996) (“[T]he State is appropriately held answerable for the acts of its officers and

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E. Other Public Employer Defenses in Public Employee Free Speech Cases Public employers and their officials who are sued under 42 U.S.C. § 1983109 in First Amendment retaliation cases can raise a number of other defenses,110 but two of these defenses—the Mt. Healthy defense, and the doctrine of qualified immunity—have had considerable impact on First Amendment cases. When these defenses are successfully raised, the public employee’s First Amendment claim will either be dismissed entirely (Mt. Healthy) or his/her request for damages will be denied (qualified immunity).111 1. The Mt. Healthy Defense In Mt. Healthy City School District Board of Education v. Doyle, plaintiff Doyle, an untenured teacher, provided the substance of an internal memorandum related to teacher dress code to a local radio station which then announced it as a news item.112 Shortly thereafter, Doyle’s contract was not renewed and he sued in federal court claiming that the school board’s decision violated his rights under the First Amendment.113 Doyle was provided with the reasons for the board’s determination, which included his decision employees because it can avoid such misconduct by adequate training and supervision and avoid its repetition by discharging or disciplining negligent or incompetent employees.”). 109 Section 1983 provides in relevant part: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured . . . . 42 U.S.C. § 1983 (2013). 110 In general, States, state entities (that are considered to be the arm of the State), and state officials (in their “official” capacity), cannot be sued for damages under the First Amendment because of the bar of the Eleventh Amendment to the U.S. Constitution. See generally, SARAH E. RICKS & EVELYN M. TENENBAUM, CURRENT ISSUES IN CONSTITUTIONAL LITIGATION 677 (2011) (“[T]he Supreme Court has interpreted the [Eleventh] Amendment to bar any suit against a state or state agency in federal court, unless the state consents to be sued, and to prevent the federal courts from intruding on state sovereignty.”). A separate but related defense is that the State, state entities, and state officials sued in their “official” capacity are not considered a “person” subject to suit under 42 U.S.C. § 1983. See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989). On the other hand, municipalities and municipal entities are considered to be “persons” subject to suit under 42 U.S.C. § 1983. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691–92, 694 (1978). However, municipal liability cannot be premised on a theory of respondeat superior but must be based upon a municipal policy, practice, or custom that caused plaintiff’s constitutional injury. City of Canton v. Harris, 489 U.S. 378, 385 (1989); RICKS & TENENBAUM, supra, at 535. 111 See discussion infra Part III.E.1–2. 112 Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 281–82 (1977). 113 Id. at 276, 282–83.

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to provide the substance of the internal memorandum to the local radio station, but also included certain interactions he had with students, another teacher, and employees in the school cafeteria that raised questions about his “tact in handling professional matters.”114 Although the school board conceded that one of the reasons for its decision not to renew Doyle’s contract was his conduct with respect to the memorandum,115 the Supreme Court determined that Doyle had no right to any remedy in court, including reinstatement and back pay, if the school board demonstrated that the non-renewal of Doyle’s contract could be supported on other, valid, non-speech related grounds.116 The board was entitled to show “that it would have reached the same decision as to [Doyle’s] re-employment even in the absence of the protected conduct.”117 If the board could make that showing, the plaintiff’s First Amendment claim would be dismissed118 even though plaintiff had satisfied his burden of proof and demonstrated that expressive activity was a substantial or motivating factor in the loss of his job.119 Because Mt. Healthy concluded that public employers face no liability if an employee’s non-speech related conduct could serve as a legitimate basis for its adverse employment action, it added another layer of complexity to the Pickering balancing test and ensured that many of these cases

Id. at 282–83. Id. 116 Id. at 284–87 (“A rule of causation which focuses solely on whether protected conduct played a part, ‘substantial’ or otherwise, in a decision not to rehire, could place an employee in a better position as a result of the exercise of constitutionally protected conduct than he would have occupied had he done nothing. . . . [A borderline or marginal] candidate ought not to be able, by engaging in such conduct, to prevent his employer from assessing his performance record and reaching a decision not to rehire on the basis of that record, simply because the protected conduct makes the employer more certain of the correctness of its decision.”). 117 Id. at 287. 118 See Wilkie v. Robbins, 551 U.S. 537, 558 n.10 (2007) (“[P]roof that the action was independently justified on grounds other than the improper one defeats the claim.” (citing Mt. Healthy, 429 U.S. at 287)); Anemone v. Metro. Transp. Auth., 629 F.3d 97, 115 (2d Cir. 2011) (“[Under Mt. Healthy] a defendant can ‘avoid liability by showing that it would have taken the same action in the absence of the impermissible reason.’” (quoting Greenwich Citizens Comm., Inc. v. Cnty. of Warren & Wash. Indus. Dev. Agency, 77 F.3d 26, 32 (2d Cir. 1996))); see also Anemone, 629 F.3d at 119–20 (“Under Mt. Healthy, evidence of the disruptive impact of potentially protected speech is relevant to the extent that it serves as an additional, permissible reason for which the government could have taken an adverse employment action against a government employee.”). 119 See, e.g., Crawford-El v. Britton, 523 U.S. 574, 593 (1998) (“Accordingly, when a public employee shows that protected speech was a ‘motivating factor’ in an adverse employment decision, the employer still prevails by showing that it would have reached the same decision in the absence of the protected conduct.” (quoting Mt. Healthy, 429 U.S. at 287)). 114 115

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would become fact-intensive lawsuits.120 2. The Qualified Immunity Doctrine When a governmental defendant is sued in his “individual capacity”121 under 42 U.S.C. § 1983122 for money damages for allegedly violating plaintiff’s First Amendment free speech rights,123 he/she can raise the doctrine of qualified immunity as a defense.124 The purpose of qualified immunity is to allow government employees who exercise discretion to perform their duties without fear that a mistake or error in judgment will result in personal liability for damages.125 Qualified immunity applies whenever governmental officials’ “conduct ‘does not violate clearly established . . . constitutional rights’ a reasonable official, similarly situated, would have comprehended.”126 Moreover, for a constitutional or statutory right to be “clearly established,” a judicial determination must have been made with reference to defendant’s conduct in the context of a specific set of similar circumstances.127 120 See infra note 132 and accompanying text (noting that First Amendment retaliation lawsuits are often fact-sensitive and factually complex). 121 For a discussion of the differences between an official capacity and individual capacity lawsuit in the context of § 1983 see RICKS & TENENBAUM, supra note 110, at 707–09. 122 See discussion supra notes 109–10 (concerning the text and scope of 42 U.S.C. § 1983). 123 Government employees must be personally involved in and responsible for the alleged constitutional violation to be found liable under 42 U.S.C. § 1983. See, e.g., Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994). Likewise, supervisors can only be liable under circumstances where their conduct or failure to act is deemed to show that they are personally responsible for the alleged constitutional violation. See, e.g., Hayut v. State Univ. of N.Y., 352 F.3d 733, 753 (2d Cir. 2003); see also Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009) (discussing supervisory liability in the context of federal pleading requirements). Such employees and supervisory officials can be named as defendants in First Amendment lawsuits brought under 42 U.S.C. § 1983 and can be sued in their personal or individual capacity for damages, which can include nominal, compensatory and punitive damages. See Hafer v. Melo, 502 U.S. 21, 30–31 (1991); Kentucky v. Graham, 473 U.S. 159, 165–67 (1985). 124 See Harlow v. Fitzgerald, 457 U.S. 800, 816 (1982) (“Immunity generally is available only to officials performing discretionary functions.”). 125 Anderson v. Creighton, 483 U.S. 635, 638 (1987) (“[P]ermitting damages suits against government officials can entail substantial social costs, including the risk that fear of personal monetary liability and harassing litigation will unduly inhibit officials in the discharge of their duties.”); Harlow, 457 U.S. at 806 (“As recognized at common law, public officers require this protection to shield them from undue interference with their duties and from potentially disabling threats of liability.”). 126 Wood v. Moss, 134 S. Ct. 2056, 2061 (2014) (quoting Harlow, 457 U.S. at 818). 127 See Wilson v. Layne, 526 U.S. 603, 615 (1999) (“[A]s we explained in Anderson, the right allegedly violated must be defined at the appropriate level of specificity before a court can determine if it was clearly established.” (citing Anderson, 483 U.S. at 641)); Ashcroft v. alKidd, 131 S. Ct. 2074, 2083 (2011) (“A Government official’s conduct violates clearly established law when, at the time of the challenged conduct, ‘[t]he contours of [a] right [are]

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The qualified immunity doctrine was determinative in Lane v. Franks. After holding that plaintiff’s truthful testimony in that case was speech by a citizen on a matter of public concern,128 the Court separately ruled that Lane could not recover any damages from defendant Franks because of qualified immunity.129 At the time of the events, the relevant precedent from the Eleventh Circuit and the Supreme Court would have allowed an objectively reasonable public official to believe that Lane’s actions in testifying truthfully in court based on information he learned on the job were outside the scope of First Amendment protection.130 In practice, when the doctrine of qualified immunity is “properly applied, it protects ‘all but the plainly incompetent or those who knowingly violate the law.’”131 Because First Amendment retaliation cases can be factually complex132 and raise novel issues of law,133 individual defendants can assert qualified immunity and have a strong chance of prevailing against a claim for damages.134 sufficiently clear’ that every ‘reasonable official would have understood that what he is doing violates that right.’ We do not require a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate.” (alteration in original) (citations omitted) (quoting Anderson, 483 U.S. at 640)). 128 Lane v. Franks, 134 S. Ct. 2369, 2378 (2014). 129 See id. at 2381–83. 130 See id. at 2383; see also Pearson v. Callahan, 555 U.S. 223, 244–45 (2009) (holding that police officers are entitled to qualified immunity where there is a split of authority among the federal circuit courts of appeals). 131 Al-Kidd, 131 S. Ct. at 2085 (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). 132 See, e.g., McGreal v. Ostrov, 368 F.3d 657, 675 (2004) (“A Pickering analysis is a highly fact-specific inquiry into a number of related factors . . . .”); see also Garcetti v. Ceballos, 547 U.S. 410, 418 (2006) (“[C]onducting these inquiries [into public employee speech] sometimes has proved difficult. This is the necessary product of ‘the enormous variety of fact situations in which critical statements by teachers and other public employees may be thought by their superiors . . . to furnish grounds for dismissal.’” (quoting Pickering v. Bd. of Ed. of Township High Sch. Dist., 391 U.S. 563, 569 (1968))). 133 See, e.g., Lane, 134 S. Ct. at 2381 (discussing that defendant’s conduct comported with then existing First Amendment law). 134 See, e.g., Lewis v. Cowen, 165 F.3d 154, 166–67 (2d Cir. 1999) (“The relevant inquiry is not whether the defendants should have known that there was a federal right, in the abstract, to ‘freedom of speech,’ but whether the defendants should have known that the specific actions complained of violated the plaintiff’s freedom of speech. Such an inquiry requires that a court define the constitutional right with some specificity.”); Lytle v. Wondrash, 182 F.3d 1083, 1088 (9th Cir. 1999) (“Because Pickering’s analysis as to whether a public employee’s expression is constitutionally protected requires a fact-sensitive, contextspecific balancing of competing interests, ‘the law regarding such claims will rarely, if ever, be sufficiently clearly established to preclude qualified immunity under Harlow and its progeny.’” (quoting Moran v. Washington, 147 F.3d 839, 847 (9th Cir. 1998))); Williams v. Kentucky, 24 F.3d 1526, 1537 (6th Cir. 1994) (“We agree that in many public employee free speech cases it would be unclear to a reasonable official what the outcome of the balancing inquiry should be.”); Bartlett v. Fisher, 972 F.2d 911, 916 (8th Cir. 1992) (“At least five circuits have concluded that, because Pickering’s constitutional rule turns upon a factintensive balancing test, it can rarely be considered ‘clearly established’ for purposes of the

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Qualified immunity can defeat a claim for damages in closely contested cases,135 and in cases where the lawsuit raises a novel legal issue that has not been resolved by the appellate courts.136 Although there are still First Amendment retaliation cases where the defense of qualified immunity has been and will be denied,137 the breadth of the qualified immunity doctrine is a matter of concern with respect to efforts to protect and promote public employee speech in the workplace. F. Whistleblower Protection Laws There is a patchwork of whistleblower protection laws at the federal,138 state,139 and local levels that provide protections to

Harlow qualified immunity standard.”). 135 See, e.g., Brewster v. Bd. of Educ., 149 F.3d 971, 981 (9th Cir. 1998) (“On the merits, the question whether Brewster’s speech was protected by the First Amendment is perhaps a close one. After all, both parties can point to important interests supporting their respective sides of the Pickering balance. Moreover, the relevant cases do not lead us inexorably to a single conclusion; quite the contrary, they point in opposite directions. . . . In view of the competing considerations on each side of the Pickering balance and the absence of specific direction from the relevant case law, it would, we think, be dubious indeed to conclude that Brewster’s right to speak was sufficiently ‘clearly established’ to defeat the school officials’ assertion of qualified immunity.” (citations omitted)). 136 See Lane, 134 S. Ct. at 2383; see also McEvoy v. Spencer, 124 F.3d 92, 105 (2d Cir. 1997) (“[T]he law was unsettled regarding whether an employee’s policymaking status automatically immunized an employer’s adverse action even in a pure Pickering case.”). 137 To be sure, the qualified immunity defense is much less likely to be successful in cases where the Pickering balance tends to clearly favor the employee, that is, the plaintiff has spoken about serious matters of public concern, and the defendant has made a very weak or limited showing of workplace disruption. See, e.g., Nagle v. Marron, 663 F.3d 100, 116 (2d Cir. 2011) (“If the ‘contours of the right [are] sufficiently clear,’ then ‘officials can still be on notice that their conduct violates established law even in novel factual circumstances.’ [The individual defendants] knew or should have known that retaliation for protected speech would violate an employee’s First Amendment rights, and they had no reason to think that speech protected in Virginia in 2004 would not be protected in New York in 2007.” (first alteration in original) (citations omitted) (quoting Hope v. Pelzer, 536 U.S. 730, 741 (2002); Anderson v. Creighton, 483 U.S. 635, 640 (1987))); Scarbrough v. Morgan Cnty. Bd. of Educ., 470 F.3d 250, 263 (6th Cir. 2006) (“[T]he greater the speech’s relationship to a matter of public concern and the more minimal the effect on office efficiency the more likely a reasonable person would be to understand that the employer’s actions violated the Constitution.” (citing Williams, 24 F.3d at 1537)); Sexton v. Martin, 210 F.3d 905, 914 (8th Cir. 2000) (“[W]here the employees have spoken out on a matter of great public concern, and the evidence that the speech caused disruption in the workplace is minimal at best, the imprecision of the Pickering balance makes little difference in our determination. We conclude that at the time of the plaintiffs’ termination, the law was clearly established that the balance would have weighed heavily in favor of the plaintiffs’ exercise of free speech.”). 138 One commentator has described the federal whistleblower statute, Whistleblower Protection Act of 1989, Pub. L. No. 101-12, 103 Stat. 16 (codified at 5 U.S.C. §§ 1211–19, 1222, 3352 (2013)), as “largely ineffective.” Secunda, supra note 8, at 1104 & n.14. 139 See Garcetti v. Ceballos, 547 U.S. 410, 440 (Souter, J., dissenting) (“Some state statutes protect all government workers, including the employees of municipalities and other

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persons who disclose information about potential or actual violations of law, or other misconduct.140 Unfortunately, these laws are not comprehensive and they tend to be targeted at only certain types of speech activities and contain other restrictions.141 For example, New York’s public employee whistleblower law, section 75-b of the New York Civil Service Law, which is intended to protect public employees from retaliation,142 includes several restrictions.143 Section 75-b forbids a public employer from dismissing or taking other disciplinary or adverse personnel action against a public employee because the employee discloses to a governmental body information concerning a violation of law that presents a danger to public health and safety, or information the employee “reasonably believes” is a violation of any law or regulation.144 The protections in the statute do not apply unless, prior to disclosing such information, the employee makes a “good faith effort to provide [his/her employer] the information to be disclosed” and provides “a reasonable time to take appropriate action unless there is imminent and serious danger to public health or safety.”145 Further, the statute does not apply if the subdivisions; others stop at state employees. Some limit protection to employees who tell their bosses before they speak out; others forbid bosses from imposing any requirement to warn.”); Patricia A. Patrick, Be Prepared Before You Blow the Whistle, FRAUD MAGAZINE (Sept./Oct. 2010), http://www.fraud-magazine.com/article.aspx?id=4294968656 (“[Author’s] review of state-level lawsuits filed by whistle-blowers shows that it’s difficult to receive protection under many of the state laws.”). 140 See Garcetti, 547 U.S. at 440 (Souter, J., dissenting) (“[T]he combined variants of statutory whistle-blower definitions and protections add up to a patchwork, not a showing that worries may be remitted to legislatures for relief.”). 141 See, e.g., U.S. MERIT SYS. PROT. BD., supra note 6, at 4 (“[N]ot all forms of wrongdoing are protected by the law. It is therefore possible for an employee to perceive that he or she has reported someone doing something ‘wrong’ while the law does not consider the report a protected act of whistleblowing.”). 142 See supra notes 25 and 29; infra notes 144 and 151. 143 See generally William A. Herbert, Protection for Public Employees Who “Blow the Whistle” Appear To Be Inadequate, N.Y. ST. B.A. J., Feb. 2004, at 20, 20 (noting the statute does not protect public employees when they report misconduct to the media). 144 N.Y. CIV. SERV. LAW § 75-b.2(a) (McKinney 2014); see Hanley v. N.Y. State Exec. Dep’t., Div. for Youth, 182 A.D.2d 317, 320, 589 N.Y.S.2d 366, 367–68 (App. Div. 3d Dep’t 1992) (noting that the “reasonable belief” clause was added in 1986 to make it easier for public employees to report suspected abuse, and thereby also protect the public); see Governor’s Memoranda, Whistleblowers’ Law—Public Employers, ch. 899, 1986 N.Y. Sess. Laws 3215, 3215 (McKinney); see also N.Y. LAB. LAW § 741 (McKinney 2014) (prohibiting retaliatory actions against any person who performs health care services for any public or private employer which provides health care services for wages or other remuneration); N.Y. STATE FIN. LAW §§ 187–194 (McKinney 2014) (codifying liability for any person whose conduct falls within the scope of the act relating to false claims). 145 CIV. SERV. § 75-b.2(b); see, e.g., Garrity v. Univ. at Albany, 301 A.D.2d 1015, 1017, 755 N.Y.S.2d 471, 473 (App. Div. 3d Dep’t 2003) (“[E]ven if petitioner were to establish a bad-faith basis for his termination, his claim under Civil Service Law § 75-b could not succeed because

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communication was made to an external source, such as the media,146 or if the substance of the complaint pertained to concerns with a lawful program, policy, or practice.147 The statute’s remedy section also has limitations. An employee who brings a claim under the statute “waive[s] . . . the rights and remedies available under any other . . . law, rule or regulation or under the common law.”148 In such lawsuit, the plaintiff can seek equitable relief, including reinstatement with back pay, lost benefits, and seniority rights, but not compensatory damages.149 Further, a public employee who is subject to the terms and conditions of grievance procedures under a collective bargaining agreement or some other state or local law, may be required to use those procedures and the remedies available there to challenge his/her employer’s alleged retaliatory conduct.150 In those

his petition includes the assertion that he reported his concerns about the pharmacy to external authorities ‘the next day’ after he communicated them to [university officials]. Clearly, this did not afford petitioner’s superiors a reasonable time to investigate and correct the problems brought to their attention, which opportunity is a precondition to his statutory cause of action.” (citing CIV. SERV. § 75-b.2(b))). 146 See Callahan, et al., supra note 27, at 891 (“Only seven U.S. states [including New York] require a whistleblower to pursue an internal outlet before contacting an external channel.”); see also id. at 893 (“No U.S. state statute identifies the media as a proper recipient of a whistleblower’s report. Indeed, twenty-one states exclude reports to the media from coverage by designating a governmental entity as the appropriate recipient, and only one protects going to the media as an initial reporting channel by allowing reporting to any nongovernmental external party.”). 147 See CIV. SERV. § 75-b.2(a) (setting forth what is covered under the public employee whistleblower statute). 148 LAB. § 740.7. Section 740.7 is an “election-of-remedies” provision. See Reddington v. Staten Island Univ. Hosp., 11 N.Y.3d 80, 89, 893 N.E.2d 120, 125, 862 N.Y.S.2d 842, 848 (2008). However, the statute has been held not to apply to preclude a First Amendment claim brought under 42 U.S.C. § 1983 because of concerns that such an interpretation might violate the Supremacy Clause, Article VI, clause 2, of the Federal Constitution. See Frank v. Office of Mental Retardation and Dev. Disabilities, 86 A.D.3d 183, 187, 924 N.Y.S.2d 634, 637 (App. Div. 3d Dep’t 2011). 149 CIV. SERV. § 75-b.3(c); LAB. § 740.4(a), 740.5; Gruenewald v. 132 W. 31st St. Realty Corp., 205 A.D.2d 498, 498, 613 N.Y.S.2d 39, 40 (App. Div. 2d Dep’t 1994) (holding that relief in section 740 of the New York Labor Law was intended to be exclusive and does not include punitive damages). The New York Court of Claims, which has subject matter jurisdiction to award money damages against the State, has held that it lacks jurisdiction to entertain actions under section 75-b of the New York Civil Service Law because the statutory remedies are equitable in nature “with no provision for general monetary damages.” Taylor v. State, 160 Misc. 2d 120, 124, 608 N.Y.S.2d 371, 375 (Ct. Cl. 1994); see Keskin v. State, 14 Misc. 3d 537, 540, 825 N.Y.S.2d 899, 901 (Ct. Cl. 2006). 150 See CIV. SERV. § 75-b.2(a), (3)(a–c); see also Obot v. N.Y. State Dep’t of Corr. Servs., 256 A.D.2d 1089, 1090, 682 N.Y.S.2d 767, 769–70 (App. Div. 4th Dep’t 1998) (“Where, as here, an employee is subject to dismissal under a final and binding arbitration provision contained in a collectively negotiated agreement, the employee must assert the protections afforded by section [75-b.2] as a defense before the arbitrator.”); Mottironi v. Axelrod, 133 A.D.2d 948, 948–49, 520 N.Y.S.2d 663, 663 (App. Div. 3d Dep’t 1987) (“To the extent that petitioner seeks

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grievances, the employee may assert that he/she was subjected to retaliation in violation of the protections set forth in section 75-b, but the arbitrator or hearing officer is not required to dismiss a disciplinary proceeding—and, if appropriate, reinstate the public employee with back pay—unless he/she makes a finding that the employee’s discipline is based “solely” on the employer’s violation of the statute.151 Therefore, a free speech constitutional tort cause of action is needed to ensure that public employees have comprehensive and meaningful protection against retaliatory conduct in the workplace. IV. THE NEW YORK COURTS MAY ESTABLISH FREE SPEECH STANDARDS UNDER THE NEW YORK STATE CONSTITUTION THAT ARE BROADER THAN THE FIRST AMENDMENT STANDARDS The New York courts, in construing the free speech provision of the New York State Constitution, are not bound by U.S. Supreme Court decisions interpreting the Federal Constitution, but may rely on those decisions in establishing independent New York rules.152 relief pursuant to [section 75-b of the New York Civil Service Law], the provisions of that statute were made inapplicable by the collective bargaining agreement which substituted its own grievance procedure.”); see also Cantres v. Bd. of Educ., 145 A.D.2d 359, 360, 535 N.Y.S.2d 714, 716 (App. Div. 1st Dep’t 1988) (“It is well established that an aggrieved union member whose employment is subject to the terms of a collective bargaining agreement entered into by his union and employer must first avail himself of the grievance procedure set forth in the agreement before he can commence an action in court. . . . It is further well settled that ‘a contract provision in a collective bargaining agreement may modify, supplement, or replace the more traditional forms of protection afforded public employees, for example, those in sections 75 and 76 of the Civil Service Law . . . .’” (quoting Dye v. N.Y.C. Transit Auth., 450 N.Y.S.2d 587, 588 (App. Div. 2d Dep’t 1982))); Plummer v. Klepak, 48 N.Y.2d 486, 489, 399 N.E.2d 897, 899, 423 N.Y.S.2d 866, 867 (1979) (noting that the failure to file a grievance under collective bargaining agreement within time deadline set forth in the agreement precludes the employee from seeking judicial review under article 78 of the CPLR). 151 See CIV. SERV. § 75-b.3(a); see also Verbeek v. Teller, 158 F. Supp. 2d 267, 277–78 (E.D.N.Y. 2001) (refusing to apply collateral estoppel in § 1983 action based on determination at employee discipline hearing because the Civil Service Law standard is more restrictive than the Mt. Healthy standard); Crossman-Battisti v. Traficanti, 235 A.D.2d 566, 568, 651 N.Y.S.2d 698, 700 (App. Div. 3d Dep’t 1997) (“Where, as here, the employer presents evidence of specific incidents of inappropriate conduct which are found to demonstrate a separate and independent basis for the action taken, a defense under Civil Service Law § 75-b cannot be sustained.”); Memorandum of State Executive Department, Whistleblower’s Law, ch. 660, 1984 N.Y. Sess. Law 3389, 3390 (McKinney) (“Employees [except those covered by collective bargaining agreements and the like] . . . will have a cause of action in supreme court to contest disciplinary or other adverse personnel action alleged to have been taken solely because of the protected right to disclose certain information.”). 152 See Immuno AG v. Moor-Jankowski, 77 N.Y.2d 235, 251, 567 N.E.2d 1270, 1279, 566 N.Y.S.2d 906, 915 (1991) (“Federal cases . . . can act as a source of guidance for State courts in formulating State law, even though interpretation of those cases in State law decisions reached on adequate and independent State grounds will be unreviewable by the Supreme

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The important public policy goals to be achieved by promoting public employee speech in the workplace support establishing a more expansive free speech cause of action under the New York State Constitution for public employee retaliation claims. A. The New York Courts Have Construed Article I, Section 8 More Expansively than the U.S. Supreme Court Has Interpreted the First Amendment Article I, Section 8 of the New York State Constitution states, in relevant part: “Every citizen may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press.”153 The New York State Court of Appeals has made clear that the protections afforded to free speech and free press in this provision of the New York State Constitution are not limited by the First Amendment: “The protection afforded by the guarantees of free press and speech in the New York Constitution is often broader than the minimum required by the First Amendment. Article I, § 8 of the Constitution assures, in affirmative terms, the right of our citizens to ‘freely speak, write and publish’ and prohibits the use of official authority which acts to ‘restrain or abridge the liberty of speech or of the press.’”154 Therefore, the New York free speech provision contains stronger, more affirmative language, than the First Amendment with respect

Court . . . .” (citing Michigan v. Long, 463 U.S. 1032, 1041 (1983))); see also People ex rel. Arcara v. Cloud Books, Inc., 68 N.Y.2d 553, 557, 503 N.E.2d 492, 494, 510 N.Y.S.2d 844, 846 (1986) (“‘[I]n determining the scope and effect of the guarantees of fundamental rights of the individual in the Constitution of the State of New York, this court is bound to exercise its independent judgment and is not bound by a decision of the Supreme Court of the United States limiting the scope of similar guarantees in the Constitution of the United States.’ The Supreme Court’s role in construing the Federal Bill of Rights is to establish minimal standards for individual rights applicable throughout the Nation. The function of the comparable provisions of the State Constitution, if they are not to be considered purely redundant, is to supplement those rights to meet the needs and expectations of the particular State.” (quoting People v. Barber, 289 N.Y. 378, 384, 46 N.E.2d 329, 331 (1943))). 153 N.Y. CONST. art. I, § 8. 154 O’Neill v. Oakgrove Constr., Inc., 71 N.Y.2d 521, 529 n.3, 523 N.E.2d 277, 280 n.3, 528 N.Y.S.2d 1, 4 n.3 (1988) (citing People ex rel Arcara, 68 N.Y.2d at 557–58, 503 N.E.2d at 494, 510 N.Y.S.2d at 846); see also Clear Channel Outdoor, Inc. v. City of N.Y., 594 F.3d 94, 112 (2d Cir. 2010) (“[T]he New York Court of Appeals has construed the provision of the New York State Constitution that pertains to freedom of speech, N.Y. Const. art. I, § 8, as containing language that may be read more expansively than the First Amendment.”).

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to protecting freedom of speech.155 A broader construction of free speech rights in New York is supported not only by the language of the constitutional provision, but also by its history and New York public policy. The free speech provision was adopted in 1821, thirty years after the ratification of the First Amendment.156 Although there was limited discussion of the free speech provision at the 1821 ratification convention, and much of that discussion was focused on the second sentence which dealt with prosecutions for libel, what was said suggests that the free speech provision was meant to reaffirm the importance of the rights of free speech and the press in New York and to restrain the authority of the government to restrict these fundamental rights.157

155 See Town of Islip v. Caviglia, 141 A.D.2d 148, 161–62, 532 N.Y.S.2d 783, 791 (App. Div. 2d Dep’t 1988) (“Although both documents prohibit laws abridging freedom of speech, the New York Constitution includes the additional language that ‘every citizen may freely speak, write and publish his sentiment on all subjects.’”), aff’d., 73 N.Y.2d 544, 540 N.E.2d 215, 542 N.Y.S.2d 139 (1989); see also People v. Santiago, 185 Misc. 2d 138, 148, 712 N.Y.S.2d 244, 251–52 (Cnty. Ct. Monroe Cnty. 2000) (“There is no such affirmative statement in the 1st Amendment to the United States Constitution. Rather there is a legislative mandate that Congress shall make no law abridging the freedom of speech or of the press.”). Compare N.Y. CONST. art. I, § 8 (“Every citizen may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press.”), with U.S. CONST. amend. I (“Congress shall make no law . . . abridging the freedom of speech, or of the press . . . .”). 156 See Miami Herald Publ’g. Co., Div. of Knight Newspapers, Inc. v. Tornillo, 418 U.S. 241, 248 (1974) (noting that the First Amendment was ratified in 1791 as part of the Bill of Rights); SHAD Alliance v. Smith Haven Mall, 66 N.Y.2d 496, 500, 488 N.E.2d 1211, 1213, 498 N.Y.S.2d 99, 101 (1985) (“The free speech provision now found in NY Constitution, article I, § 8 was added in 1821 as part of the New York Bill of Rights, which was essentially based on the Bill of Rights contained in the United States Constitution); 1 CHARLES Z. LINCOLN, THE CONSTITUTIONAL HISTORY OF NEW YORK 733–34 (1906) (“The framers of [the 1821 constitution] sought to include in it all the provisions deemed necessary, which were found in the English and New York Bills of Rights, and in the first ten amendments to the Federal Constitution.”); see also Immuno AG, 77 N.Y.2d at 249, 567 N.E.2d at 1277, 566 N.Y.S.2d at 913 (“[The words of article I, § 8], unchanged since the adoption of the constitutional provision in 1821, reflect the deliberate choice of the New York State Constitutional Convention not to follow the language of the First Amendment, ratified 30 years earlier, but instead to set forth our basic democratic ideal of liberty of the press in strong affirmative terms.”). 157 See NATHANIEL H. CARTER & WILLIAM L. STONE, REPORTS OF THE PROCEEDINGS AND DEBATES OF THE CONVENTION OF 1821, at 163 (1821) (“[Chairman Sharpe stated that a] bill of rights setting forth the fundamental provisions of our government, has always been held sacred, and [he] ha[d] seen . . . the utility of this bill of rights, which serves as a standard, easily referred to on all constitutional questions: one calculated to restrain useless and improvident legislation.”); 2 J. HAMPDEN DOUGHERTY, LEGAL AND JUDICIAL HISTORY OF NEW YORK 121 (1911) (“The convention of 1821 was an unqualified victory for popular rights. . . . It incorporated into the organic law a fuller bill of rights.”); see also SHAD Alliance, 66 N.Y.2d at 500, 488 N.E.2d at 1213–14, 498 N.Y.S.2d at 102 (“The Reports of the Proceedings and Debates at the 1821 Convention plainly indicate that the New York Bill of Rights, like its Federal counterpart, was intended by its drafters to serve as a check on governmental, not private, conduct. General Root, for example, explicitly directing himself to the ‘4th clause, respecting the liberty of speech and the press . . . said it was doubtless intended to secure the

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As Judge Kaye explained: This State, a cultural center for the Nation, has long provided a hospitable climate for the free exchange of ideas . . . . That tradition is embodied in the free speech guarantee of the New York State Constitution. . . . Those words, unchanged since the adoption of the constitutional provision in 1821, reflect the deliberate choice of the New York State Constitutional Convention not to follow the language of the First Amendment, ratified 30 years earlier, but instead to set forth our basic democratic ideal of liberty of the press in strong affirmative terms.158 In accordance with this tradition, the New York State Court of Appeals has interpreted the free speech and free press provision of the state constitution more broadly than the First Amendment where state and local values, interests, and public policy called for a different standard.159 For example, in People ex rel. Arcara v. Cloud Books, Inc., the Erie County district attorney made an application to close an adult bookstore for one year as a public nuisance “because some patrons [of the bookstore were] using the premises to commit illegal sexual acts.”160 In an earlier phase of the same case, the U.S. Supreme Court found that the bookstore’s First Amendment rights were not even implicated by the challenged closure,161 and sent the case back to the New York State Court of Appeals to determine whether broader speech protections are available under article I, section 8 of the New York Constitution.162

citizen as well against the arbitrary acts of the legislature, as against those of the judiciary.’” (quoting CARTER & STONE, supra, at 167)). 158 Immuno AG, 77 N.Y.2d at 249, 567 N.E.2d at 1277, 566 N.Y.S.2d at 913 (citing Beach v. Shanley, 62 N.Y.2d 241, 255–56, 465 N.E.2d 304, 312, 476 N.Y.S.2d 765, 773 (1984) (Wachtler, J., concurring)). 159 See, e.g., Immuno AG, 77 N.Y.2d at 248–50, 567 N.E.2d at 1277–78, 566 N.Y.S.2d at 913–14 (construing the free speech and free press language in article I, § 8 of the New York Constitution broadly to afford protection from a libel action for the editor of a scientific journal); O’Neill v. Oakgrove Constr., Inc., 71 N.Y.2d 521, 524, 523 N.E.2d 277, 277–78, 528 N.Y.S.2d 1, 1–2 (1988) (construing the free press language in article I, § 8 of the New York Constitution to afford a qualified privilege to compelled disclosure of a journalist’s nonconfidential photographs taken in the course of newsgathering activities); Bellanca v. N.Y. State Liquor Auth., 54 N.Y.2d 228, 230, 429 N.E.2d 765, 766, 445 N.Y.S.2d 87, 88 (1981) (construing a New York State liquor law statute, which included a wholesale ban on topless dancing in premises licensed by the New York State Liquor Authority to serve liquor at retail for consumption on the premises, to be a violation of the free speech provision of the state constitution). 160 People ex rel. Arcara v. Cloud Books, Inc., 68 N.Y.2d 553, 555, 503 N.E.2d 492, 493, 510 N.Y.S.2d 844, 845 (1986). 161 Arcara v. Cloud Books, Inc., 478 U.S. 697, 707 (1986). 162 Arcara, 68 N.Y.2d at 555–56, 503 N.E.2d at 493, 510 N.Y.S.2d at 845.

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In analyzing the interests at stake, the Court of Appeals explained that free speech is often governed by community standards.163 Therefore, in certain free speech cases, including freedom of expression in books, movies and the arts, the U.S. Supreme Court’s role is to set minimum standards and the state’s role is to establish its own independent standards based on state and local interests.164 The Court of Appeals determined that if the closure order had an “incidental impact” on the exercise of freedom of expression, New York’s free speech standard would require the district attorney to prove that the requested closure order is “no broader than necessary to accomplish its purpose.”165 The Court of Appeals concluded that the closure order would have an “incidental impact” on the bookstore’s freedom of expression because, even though the order’s main purpose was to restrain illegal acts, to achieve that purpose the bookstore would be unable to engage in the constitutionally protected activity of bookselling for a year.166 Thus, New York’s free speech standard as applied in Arcara was more protective of freedom of expression than the First Amendment standard provided by the U.S. Supreme Court.167 B. Article I, Section 8 Should Be Read More Expansively than the First Amendment in Public Employee Retaliation Cases Where an argument is made for a broader construction of the state constitutional free speech provision, the New York courts will

Id. at 557, 503 N.E.2d at 494, 510 N.Y.S.2d at 846. Id.; see also Time Square Books, Inc. v. City of Rochester, 223 A.D.2d 270, 274, 645 N.Y.S.2d 951, 955 (App. Div. 4th Dep’t 1996) (“It is often forgotten that diversity is the essence of federalism and that the Federal Constitution only guarantees minimum protections, leaving to the States the task of affording additional or greater rights under their Constitutions, tailored to the special needs and traditions of the various States. There is probably no area in which State attitudes are more diverse, and thus where independent State constitutional rights serve their intended purposes, than in the area dealing with freedom of expression.” (citations omitted) (quoting Beach v. Shanley, 62 N.Y.2d 241, 255, 465 N.E.2d 304, 312, 476 N.Y.S.2d 765, 773 (1984) (Wachtler, J., concurring) (internal quotation marks omitted)). 165 Arcara, 68 N.Y.2d at 559, 503 N.E.2d at 495, 510 N.Y.S.2d at 847. 166 Id. 167 See Stringfellow’s of New York, Ltd. v. City of N.Y., 91 N.Y.2d 382, 397, 694 N.E.2d 407, 415, 671 N.Y.S.2d 406, 415 (1998) (“The threshold issue here is whether the City’s zoning amendments are purposefully directed at controlling the content of the message conveyed through adult businesses or are instead aimed at an entirely separate societal goal. The Federal constitutional analysis requires examination of the ordinance’s ‘predominant purpose’, while the State constitutional inquiry focuses on whether there has been ‘a purposeful attempt to regulate speech.’” (quoting Town of Islip v. Caviglia, 73 N.Y.2d 544, 557, 540 N.E.2d 215, 222, 542 N.Y.S.2d 139, 146 (1989))). 163 164

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independently evaluate the specific free speech claim taking into account state and local policies and interests.168 New York public policy is supportive of broader speech rights for public employees. This policy is reflected, in part, by New York’s enactment of section 75-b of the Civil Service Law to provide protections to public employees who come forward to disclose violations of law.169 New York public policy also supports transparency and accountability in government,170 and broader free speech rights for public employees furthers that public policy as well.171 In addition, New York has, over its history, taken a leading role in advancing the right of its residents to freely express their views and opinions.172

168 For example, in the area of government regulation of commercial speech, the New York State Court of Appeals has applied the same test used by the Supreme Court in evaluating such regulation under the First Amendment. See Clear Channel Outdoor, Inc. v. City of N.Y., 594 F.3d 94, 112, 113 (2d Cir. 2010). 169 See Governor’s Memoranda., Whistleblowers Law, ch. 660, 1984 N.Y. Sess. Law 3624, 3624 (McKinney); Governor’s Memoranda, Whistleblowers’ Law—Public Employers, ch. 899, 1986 N.Y. Sess. Laws 3215, 3215 (McKinney); supra notes 142–44 and accompanying text. 170 See, e.g., N.Y. CIV. SERV. LAW § 107 (McKinney 2014); N.Y. EXEC. LAW § 94 (McKinney 2014); N.Y. LEG. LAW § 80 (McKinney 2014); N.Y. PUB. OFF. LAW §§ 73, 73-a, 74, 84, 100 (McKinney 2014); N.Y. COMP. CODES R. & REGS. tit. 19, § 930.1 (2014); Perez v. City Univ. of N.Y., 5 N.Y.3d 522, 528, 840 N.E.2d 572, 574, 806 N.Y.S.2d 460, 462 (2005) (“In enacting [Section 100 of the New York Public Officers Law], the Legislature sought to ensure that ‘public business be performed in an open and public manner and that the citizens of this state be fully aware of and able to observe the performance of public officials and attend and listen to the deliberations and decisions that go into the making of public policy.’” (quoting PUB. OFF. § 100)); Capital Newspapers, Div. of Hearst Corp. v. Whalen, 69 N.Y.2d 246, 252, 505 N.E.2d 932, 936, 513 N.Y.S.2d 367, 371 (1987) (“[Section 84 of the New York Public Officers Law] is to be liberally construed and its exemptions narrowly interpreted so that the public is granted maximum access to the records of government.”). 171 See, e.g., Callahan et al., supra note 27, at 905. 172 See, e.g., Immuno AG v. Moor-Jankowski, 77 N.Y.2d 235, 249, 567 N.E.2d 1270, 1277, 566 N.Y.S.2d 906, 913 (1991) (“This State, a cultural center for the Nation, has long provided a hospitable climate for the free exchange of ideas. That tradition is embodied in the free speech guarantee of the New York State Constitution . . . .” (citing Beach v. Shanley, 62 N.Y.2d 241, 255–256, 465 N.E.2d 304, 312, 476 N.Y.S.2d 765, 773 (1984) (Wachtler, J., concurring))); People ex rel. Arcara v. Cloud Books, Inc., 68 N.Y.2d 553, 557, 503 N.E.2d 492, 494, 510 N.Y.S.2d 844, 846 (1986) (“New York has a long history and tradition of fostering freedom of expression, often tolerating and supporting works which in other States would be found offensive to the community.” (citing People v. P.J. Video, Inc., 68 N.Y.2d 296, 309, 501 N.E.2d 556, 564, 508 N.Y.S.2d 907, 915–916 (1986))); CHAFEE, JR., supra note 1, at 3–4 (“The citizens of the states were not satisfied, and the absence of the guaranty of freedom of speech was repeatedly condemned in the state conventions and in outside discussion. Virginia, New York, and Rhode Island embodied a declaration of this right in their ratifications of the federal Constitution.”); see also CHAFEE, JR., supra note 1, at 3–4 n.2 (“Twenty-three state constitutions follow Hamilton in making truth a defense to criminal libel if published with good motives. The first was the New York Constitution, 1821, Art. 7, § 8. All but five states have a clause resembling another section of the New York section: ‘Every citizen may freely speak, write, and publish his sentiments, on all subjects, being responsible for the abuse of that right; and no law shall be passed, to restrain, or abridge the liberty of speech, or of the press.’” (citations omitted)).

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C. Independent New York Standards for Public Employee Retaliation Lawsuits173 In order for the New York free speech provision to provide public employees subject to retaliation with greater protection, consideration needs to be given to modifying several of the First Amendment standards that raise concerns. I propose four modifications. 1. The Public Employer’s Burden of Proof Under the Pickering Balancing Test Should Be Changed from “Preponderance of the Evidence” to “Clear and Convincing” Evidence. The “clear and convincing” evidence standard is a higher burden of proof than the “preponderance of the evidence” standard, and imposing this higher standard would reflect the importance that should be attached to a public employer’s decision to take disciplinary action against a public employee based on his/her speech.174 The government is required to meet this higher standard 173 Although the focus of this article is on establishing a broader New York State free speech constitutional cause of action for public employee speech, “studies indicate that factors other than fear of retaliation are relevant to the decision whether to blow the whistle.” Callahan et al., supra note 27, at 908. Establishing and following internal procedures that allow for errors and mistakes, serious or not, to be reported and rectified are considered important tools to establishing a climate encouraging the free expression of ideas. See U.S. MERIT SYS. PROT. BD., supra note 6, at 25; Callahan et al., supra note 27, at 905 (“Intraorganizational (internal) whistleblowing halts wrongdoing by facilitating prompt investigation and correction of wrongful conduct. Internal disclosures also minimize the organizational costs of whistleblowing by permitting employers to rectify misconduct confidentially and with little disruption to employer-employee relationships. Internal reports also enable the correction of misunderstandings, reducing the likelihood that the organization will unfairly suffer harm due to external exposure. Nevertheless, these considerations are inapposite when the wrongdoing is not corrected, the whistleblower suffers retaliation, or internal disclosure is likely to be futile.”). Indeed, the Supreme Court suggested in Garcetti, that employers fashion internal policies to encourage employees to address wrongdoing in private to avoid disruption to the government’s operations. Garcetti v. Ceballos, 547 U.S. 410, 424 (2006) (“A public employer that wishes to encourage its employees to voice concerns privately retains the option of instituting internal policies and procedures that are receptive to employee criticism. Giving employees an internal forum for their speech will discourage them from concluding that the safest avenue of expression is to state their views in public.”). 174 See, e.g., Addington v. Texas, 441 U.S. 418, 423–24 (1979) (“The function of a standard of proof, as that concept is embodied in the Due Process Clause and in the realm of factfinding, is to ‘instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication.’ The standard serves to allocate the risk of error between the litigants and to indicate the relative importance attached to the ultimate decision.” (quoting In re Winship, 397 U.S. 358, 370 (1970) (Harlan, J., concurring))); see also Matheson, Jr., supra note 107, at 240 (“[J]ustifications for presumptions and allocations of the risk of nonpersuasion usually involve substantive preferences in addition to assessments of probability. Thus presumptions and

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in other areas where important interests are at stake.175 Reallocating the risk of loss seems appropriate in light of the essential role that the right of free speech plays in our society, especially where public employees are concerned.176 The courts have the authority, in appropriate circumstances, to establish a risk of loss standard commensurate with the underlying interests at stake.177 A clear and convincing evidence standard would help to ensure that the public employer takes a hard look at the facts and the impact on the workplace and workforce, before proceeding with any adverse employment action as a result of an employee’s

burdens of proof often allocate the risk of uncertainty in a way that favors a substantive interest. . . . A departure from th[e preponderance of the evidence] principle often is based on a relative assessment of the substantive interests at stake.”). 175 See, e.g., Addington, 441 U.S. at 427 (adopting clear and convincing evidence standard for civil commitment proceedings to ensure substantive due process protection); Pardo, supra note 106, at 1474–75 (“Prominent examples include fraud, civil commitment, deportation, denaturalization, termination of parental rights, decisions to terminate life, and proof of malice in defamation cases involving public figures. In these cases, the concern for material accuracy (and the consequent risk of error) is skewed asymmetrically against plaintiffs and in favor of defendants more so than under the preponderance rule.”). 176 See, e.g., Speiser v. Randall, 357 U.S. 513, 528–29 (1958) (“[W]hen the constitutional right to speak is sought to be deterred by a State’s general taxing program due process demands that the speech be unencumbered until the State comes forward with sufficient proof to justify its inhibition.”). For instance, a 2003 Government Accountability Office (GAO) report noted the differences in the government employer’s burden of proof in military versus civilian proceedings involving whistleblowers, and explained that “in . . . cases [involving civilian government agencies], management must prove by clear and convincing evidence that it would have taken a personnel action regardless of a protected disclosure . . . . Clear and convincing evidence requires a degree of proof more demanding than preponderance.” Nick Schwellenbach, Why Military Whistleblowers Fear Reprisal, TIME.COM (Oct. 20, 2011), http://nation.time.com/2011/10/20/why-military-whistleblowers-fear-reprisal/ (quoting U.S. GOV’T ACCOUNTABILITY OFFICE, GAO-04-258, MILITARY PERSONNEL: INFORMATION ON SELECTED NATIONAL GUARD MANAGEMENT ISSUES (Dec. 2003) (internal quotation marks omitted). 177 See, e.g., N.Y. VEH. & TRAF. LAW § 227.1 (McKinney 2014) (requiring the State to prove traffic infractions by clear and convincing evidence); Santosky v. Kramer, 455 U.S. 745, 767 (1982) (“Nor would an elevated standard of proof create any real administrative burdens for the State’s factfinders. . . . New York also demands at least clear and convincing evidence in proceedings of far less moment than parental rights termination proceedings.”); Rosenthal v. Hartnett, 36 N.Y.2d 269, 273–74, 326 N.E.2d 811, 813, 367 N.Y.S.2d 247, 250 (1975) (“We conclude that there is no substance to petitioner’s contention that he was denied due process of law in the use of the ‘clear and convincing evidence’ standard of proof in the administrative adjudication of his speeding infraction.”); see also Addington, 441 U.S. at 424 (“The intermediate standard, which usually employs some combination of the words ‘clear,’ ‘cogent,’ ‘unequivocal’ and ‘convincing,’ is less commonly used, but nonetheless ‘is no stranger to the civil law.’ . . . [T]his Court has used the ‘clear, unequivocal and convincing’ standard of proof to protect particularly important individual interests in various civil cases.” (quoting Woodby v. Immigration Naturalization Serv., 385 U.S. 276, 285 (1966))); Ross v. Food Specialties, Inc., 6 N.Y.2d 336, 341, 160 N.E.2d 618, 620, 189 N.Y.S.2d 857, 859 (1959) (requiring clear and convincing evidence for contract reformation (citing Amend v. Hurley, 293 N.Y. 587, 595, 59 N.E.2d 416, 419 (1944))).

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speech.178 The higher standard should not prevent the public employer who has legitimate concerns about disruption within the workplace in satisfying its burden of proof.179 2. The Requirement that the Public Employee’s Speech Is Protected Only if He/She Speaks as a “Citizen” Should Be Eliminated. The distinction recognized in Garcetti v. Ceballos, and clarified to a certain extent in Lane v. Franks, between speech as a citizen and speech as a government employee when acting pursuant to one’s ordinary work duties, should be eliminated. If a public employee suffers adverse employment action based on his/her expression, the Pickering balancing test should apply so long as the speech is on a matter of public concern. As Justice Stevens wrote in his dissent in Garcetti: “The notion that there is a categorical difference between speaking as a citizen and speaking in the course of one’s employment is quite wrong.”180 Indeed, lower courts have struggled with the concept of “pursuant to” an employee’s “official duties” and constructed additional criteria in an attempt to define these terms.181 178 See Matheson, supra note 107, at 240 (“Presumptions and allocations of proof burdens ordinarily conform to probabilities about the likely state of facts or about the party in a better position to prove a fact. . . . Indeed, when important values are at stake, allocating the risks of uncertainty without considering substantive preferences is inconceivable.”); see also id. at 241 (“Because adjustments to the degree of proof and to the allocation of burdens of production and persuasion distribute the risks of uncertainty in litigation and respond to substantive interests, innovation in burden of proof rules has been a logical domain in which the Court can provide procedural assistance to protect and complement substantive values.”). 179 See, e.g., Jackler v. Byrne, 658 F.3d 225, 234 (2d Cir. 2011) (“‘Government employers, like private employers, need a significant degree of control over their employees’ words and actions’ in order that employees not ‘contravene governmental policies or impair the proper performance of governmental functions,’ when acting ‘as an employer charged with providing such essential services as public safety and education,’ rather than a sovereign governing its citizens, a governmental entity has ‘greater leeway’ under the Constitution ‘to control employees’ speech that threatens to undermine its ability to perform its legitimate functions.’” (quoting Garcetti v. Ceballos, 547 U.S. 410, 418, 419 (2006); Lewis v. Cowen, 165 F.3d 154, 161 (2d Cir. 1999))); McEvoy v. Spencer, 124 F.3d 92, 103 (2d Cir. 1997) (“We therefore read Pickering and its progeny as holding that the policymaking status of the discharged or demoted employee is very significant in the Pickering balance, but not conclusive . . . . Common sense tells us that the expressive activities of a highly placed supervisory, confidential, policymaking, or advisory employee will be more disruptive to the operation of the workplace than similar activity by a low level employee with little authority or discretion. . . . Indeed, where the employee holds an extremely confidential or highly placed advisory position, it would be unlikely if the Pickering balance were to be struck in his favor. The tremendous disruption to the public workplace likely to result from the critical speech of such an employee would in most cases outweigh any First Amendment interests possessed by that employee.”). 180 Garcetti, 547 U.S. at 427 (Stevens, J., dissenting). 181 See supra note 85 and accompanying text.

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If the employee alleges retaliation as a result of his/her speech on a matter of public concern, the claim makes sense for it to be evaluated under the Pickering balancing test because the public interest warrants the broad disclosure of information, and the free exchange of ideas, on important issues.182 On the other hand, if the speech pertains to an internal personnel matter, the court can conclude that it is not a matter of public concern and the Pickering balancing test would not apply.183 The employer would continue to have the opportunity to explain the reasons for its actions, and the courts could continue to defer to the important interests public employers have in maintaining control of their workforce and avoiding disruption in the workplace.184 3. The Mt. Healthy Defense Should Apply Only to Defeat a Claim for Reinstatement and Accompanying Monetary Relief, but Not a Claim for Declaratory Relief or Damages. If the public employee prevails under the Pickering balancing test, he/she should be able to obtain some measure of relief to vindicate the impairment of his/her right to free speech even if the employer succeeds in its Mt. Healthy defense, and establishes that there was an independent, good faith basis for the adverse employment action. The Mt. Healthy defense permits a public employer to avoid liability even where there is a showing of retaliatory conduct.185 When a court weighs the competing interests under Pickering and determines that a public employee’s right to free speech has been violated, the employee should be able to obtain See Callahan et al., supra note 27, at 905; Leading Cases, supra note 84, at 279. See, e.g., Connick v. Myers, 461 U.S. 138, 146 (1983) (“[I]f Myers’ questionnaire cannot be fairly characterized as constituting speech on a matter of public concern, it is unnecessary for us to scrutinize the reasons for her discharge.”); see also City of San Diego v. Roe, 543 U.S. 77, 84 (2004) (“Roe’s activities did nothing to inform the public about any aspect of the [San Diego Police Department’s] functioning or operation.”); United States v. Nat’l Treasury Emps. Union, 513 U.S. 454, 466 (1995) (“[P]rivate speech that involves nothing more than a complaint about a change in the employee’s own duties may give rise to discipline without imposing any special burden of justification on the government employer.” (citing Connick, 461 U.S. at 148–49)); Ezekwo v. N.Y.C. Health & Hosps. Corp., 940 F.2d 775, 781 (2d Cir. 1991) (“Viewed objectively and as a whole, Ezekwo’s statements did not address matters of public concern. Her complaints were personal in nature and generally related to her own situation within the HHC residency program.”). 184 See supra notes 98–103, 176 and accompanying text. 185 See, e.g., Anemone v. Metro. Transp. Auth., 629 F.3d 97, 114 (2d Cir. 2011) (“[Mt. Healthy] provides that ‘even if there is evidence that the adverse employment action was motivated in part by protected speech, the government can avoid liability if it can show that it would have taken the same adverse action in the absence of the protected speech.’” (quoting Heil v. Santoro, 147 F.3d 103, 110 (2d Cir. 1998))). 182 183

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a declaratory judgment and some monetary relief, such as damages for reputational injury, even if the employer can also demonstrate an independent basis for the adverse job action and thereby defeat a claim for reinstatement and back pay. This compromise would ensure that the right to free speech under the state constitution is protected.186 4. The Doctrine of Respondeat Superior Should Apply in Free Speech Constitutional Tort Claims Against the State or a Municipality. The Court of Appeals has already held that the doctrine of respondeat superior applies against the State in a constitutional tort cause of action.187 The court also indicated in Brown v. State, that as a subdivision of the state, the doctrine would apply to a municipality.188 As a matter of public policy, a governmental entity, which is responsible for hiring, firing and training employees, is better situated to bear the costs of a damages award.189 The

186 See Dominguez-Curry v. Nevada Trans. Dept., 424 F.3d 1027, 1040 (9th Cir. 2005) (“An employer may be held liable under Title VII even if it had a legitimate reason for its employment decision, as long as an illegitimate reason was a motivating factor in the decision.” (citing 42 U.S.C. § 2000e-2(m) (2013); Costa v. Desert Palace, Inc., 299 F.3d 838, 847–48 (9th Cir. 2002), aff’d, 539 U.S. 90 (2003))); McEvoy v. Spencer, 124 F.3d 92, 101 (2d Cir. 1997) (“In the Title VII context, for instance, it is well established that where the employee proves that his employer took adverse action against him for both a legitimate reason (the employee’s chronic tardiness, for instance) and an illegitimate reason (the employee’s race, for instance), the employer is liable, at least for some relief.”); see also 42 U.S.C. § 2000e-2(m) (“[A]n unlawful employment practice is established [under Title VII] when . . . race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.”); 42 U.S.C. § 2000e-5(g)(2)(B) (limiting plaintiffs to declaratory relief, injunctive relief (but not reinstatement, hiring, promotion or payment of back pay), and attorney’s fees and costs (but only those directly attributable to the claim of violation of Title VII, and excluding damages) in circumstances where the employee establishes an “unlawful employment practice” but the employer demonstrates that it “would have taken the same action in the absence of the impermissible motivating factor”). 187 See Brown v. State, 89 N.Y.2d 172, 193–95, 674 N.E.2d 1129, 1142–43, 652 N.Y.S.2d 223, 236–37 (1996). 188 Id. at 193, 674 N.E.2d at 1141, 652 N.Y.S.2d at 235. 189 Id. at 194–95, 674 N.E.2d at 1142–43, 652 N.Y.S.2d at 236–37; see also Charles E. Cantu, Distinguishing the Concept of Strict Liability in Tort from Strict Products Liability: Medusa Unveiled, 33 U. MEM. L. REV. 823, 857–858 (2003) (“In addition to the element of control, there is the thought that an employer, especially in the case of a going enterprise, has the deepest pocket. . . . Another reason for this form of liability is based upon public policy, or economically speaking, allocation of risk. A business enterprise should pay. Such a concern is better able to absorb the cost . . . . As an added bonus, strict liability in these cases will encourage an employer to exercise more care when selecting his employees.”); Laura Oren, Immunity and Accountability in Civil Rights Litigation: Who Should Pay?, 50 U. PITT. L. REV. 935, 965-967 (1989) (“In Justice Brennan’s majority opinion [in Owen v. City of

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governmental employer can also exercise its authority to prevent future instances of retaliatory conduct through improved training and personnel management. Therefore, respondeat superior should apply in free speech claims as well. V. IN SUPPORT OF A STATE FREE SPEECH CONSTITUTIONAL TORT IN PUBLIC EMPLOYEE RETALIATION LAWSUITS Since there is no New York law similar to 42 U.S.C. § 1983 that can be used to enforce the free speech provision of the New York State Constitution,190 the New York courts would have to create an implied cause of action to directly enforce the constitutional provision.191 Fortunately, the New York State Court of Appeals’ decision in Brown, provides a roadmap for accomplishing this objective.192 A. The Court of Appeals’ Decision in Brown v. State Supports Implying a State Constitutional Free Speech Tort In Brown, the court considered whether the State could be sued for damages based directly on article I, sections 11 and 12 of the New York State Constitution,193 which, inter alia, prohibit denying any person equal protection of the laws and provide protection against unreasonable searches and seizures.194 The claim was brought by nonwhite males who were stopped and examined by police in Oneonta, New York based on a description by the victim of an attack that her assailant was a black male, and a police determination that he may have cut his hand with the knife used in the attack.195 In evaluating whether the Court of Claims could entertain plaintiffs’ action, the Court of Appeals first determined that the Court of Claims had subject matter jurisdiction to decide Independence] . . . [t]he Court suggested that it made sense for municipalities to be liable even under circumstances where their officials were protected by a qualified immunity. . . . The government ought to be responsible and the official shielded. The trend in fact has been in that direction. . . . Removal of the threat of personal liability also removed the chill on the decision-making process. As a result, the cost of a constitutional violation would be allocated where it belonged.” (citing Owen v. City of Independence, Missouri, 445 U.S. 622, 653–57 (1980))). 190 See supra notes 109–10. 191 See Brown, 89 N.Y.2d at 186, 674 N.E.2d at 1137, 652 N.Y.S.2d at 231. 192 See id. at 186–96, 674 N.E.2d at 1137–44, 652 N.Y.S.2d at 231–38. 193 Id. at 175–76, 186, 674 N.E.2d at 1131, 1137, 652 N.Y.S.2d at 225, 231. 194 Id. at 190–91 nn.8–9, 674 N.E.2d at 1140 nn.8–9, 652 N.Y.S.2d at 234, nn.8–9. 195 Id. at 175–76, 674 N.E.2d at 1131, 652 N.Y.S.2d at 225.

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constitutional tort claims.196 Second, the Court of Appeals concluded that it could establish an implied cause of action for damages under both the equal protection and search and seizure provisions because they were self-executing, that is, they did not require legislation to be enforceable.197 Third, the court determined that establishing a damage remedy for the constitutional violation would be consistent with the language, history, and purposes of both provisions.198 Moreover, such a remedy would be “necessary and appropriate to ensure the full realization of the rights they state.”199 Fourth, the court addressed whether alternative remedies rendered the constitutional tort unnecessary. With respect to common-law torts, which claimants had not asserted,200 the court concluded that implying a constitutional tort should not depend upon “the availability of a common-law tort cause of action.”201 Common-law tort rules are heavily influenced by overriding concerns of adjusting losses and allocating risks, matters that have little relevance when constitutional rights are at stake. Moreover, the duties imposed upon government officers by these [constitutional] provisions address something far more serious than the private wrongs regulated by the common law.202 Next, the court found that equitable remedies, such as an injunction or a declaration, “all fall short” because the claimants “had no opportunity to obtain injunctive relief before the incidents described and no ground to support an order enjoining future wrongs.”203 The court also explained that in this case “exclusion” of the evidence “has no deterrent value” because the claimants were not charged with any crime.204 For the Brown claimants, “it [was] damages or nothing.”205 Moreover, damages were a “necessary deterrent” for the misconduct alleged in the complaint.206 Last, the court responded to the arguments raised by the dissent Id. at 183, 674 N.E.2d at 1136, 652 N.Y.S.2d at 230. Id. at 186, 674 N.E.2d at 1137–38, 652 N.Y.S.2d at 231–32. 198 Id. at 186, 188–89, 674 N.E.2d at 1137–39, 652 N.Y.S.2d at 231–33. 199 Id. at 189, 674 N.E.2d at 1139, 652 N.Y.S.2d at 233. 200 See id. at 184–85, 674 N.E.2d at 1136–37, 652 N.Y.S.2d at 230–31. 201 Id. at 191, 674 N.E.2d at 1140, 652 N.Y.S.2d at 234. 202 Id. at 191, 674 N.E.2d at 1140–41, 652 N.Y.S.2d at 234–35. 203 Id. at 192, 674 N.E.2d at 1141, 652 N.Y.S.2d at 235. 204 Id. 205 Id. (quoting Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 410 (1971) (Harlan, J., concurring)) (internal quotation marks omitted). 206 Brown, 89 N.Y.2d at 192, 674 N.E.2d at 1141, 652 N.Y.S.2d at 235. 196 197

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that the State can be held liable under respondeat superior for violation of a constitutional tort, and explained that such liability is appropriate because the State can avoid misconduct by adequate training and supervision of its officials and employees.207 Following the analysis in Brown, the New York courts could justify implying a free speech tort cause of action for damages directly under the state constitution. The first question under Brown was whether the court had subject matter jurisdiction over the proposed cause of action. Brown held that the Court of Claims has general jurisdiction to entertain constitutional tort claims for money damages against the State, and that holding should apply as well to the free speech constitutional tort.208 One possible issue that could be raised is that the waiver of sovereign immunity in section 8 of the Court of Claims Act,209 does not apply because the free speech provision only restrains the conduct of government officials, not private actors.210 This argument is based on the language in section 8, that the State consents to have its liability “determined in accordance with the same rules of law as applied to actions in the supreme court against individuals or corporations,”211 and the assertion that “[i]ndividuals and corporations . . . cannot be sued for constitutional violations” in the supreme court because constitutional provisions apply to action by government, not private parties.212 However, the Court of Appeals rejected the same argument in Brown and concluded that the Court of Claims’ jurisdiction was sufficiently broad to encompass constitutional torts,213 the State’s waiver of immunity includes all claims over which the Court of Claims has jurisdiction,214 and individuals and corporations can be sued under some constitutional provisions, including for federal constitutional

207 See id. at 192–96, 674 N.E.2d at 1141–44, 652 N.Y.S.2d at 235–38 (addressing the dissenting opinion’s arguments). 208 Id. at 183, 674 N.E.2d at 1136, 652 N.Y.S.2d at 230 (“[W]e conclude that . . . damage claims against the State based upon violations of the State Constitution come within the jurisdiction of the Court of Claims.”). 209 See id. at 180–81, 674 N.E.2d at 1134, 652 N.Y.S.2d at 228. 210 See SHAD Alliance v. Smith Haven Mall, 66 N.Y.2d 496, 502, 488 N.E.2d 1211, 1215, 498 N.Y.S.2d 99, 103 (1985). 211 N.Y. CT. CL. ACT § 8 (McKinney 2014). Section 8 provides: “The state hereby waives its immunity from liability and action and hereby assumes liability and consents to have the same determined in accordance with the same rules of law as applied to actions in the supreme court against individuals or corporations . . . .” Id. 212 Brown, 89 N.Y.2d at 182, 674 N.E.2d at 1135, 652 N.Y.S.2d at 229. 213 Id. at 182–83, 674 N.E.2d at 1135, 652 N.Y.S.2d at 229. 214 Id. at 181, 674 N.E.2d at 1134, 652 N.Y.S.2d at 228.

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torts.215 Therefore, wrote the court, “the causes of action asserted by claimants are sufficiently similar to claims which may be asserted by individuals and corporations in Supreme Court to satisfy the statutory requirement.”216 The court’s conclusion that it had subject matter jurisdiction over the equal protection and search and seizure prohibition constitutional torts should mean that the Court of Claims would have subject matter jurisdiction over the free speech claim.217 Since Brown was brought against the State in the Court of Claims, the Court of Appeals did not address whether an implied constitutional tort could be brought against a municipality that can be sued in state supreme court for alleged wrongful conduct of its officers and employees. There appears to be no legal or policy reason to support the argument that the supreme court should not have jurisdiction over constitutional torts.218 The supreme court is a court of general jurisdiction and its Id. at 183, 674 N.E.2d at 1135, 652 N.Y.S.2d at 229. Id. at 183, 674 N.E.2d at 1135, 652 N.Y.S.2d at 230. 217 There are several other arguments that would support Court of Claims’ jurisdiction with respect to the free speech provision, including that: 1) the terms of the statutory waiver in section 8 of the Court of Claims Act have been met because constitutional tort claims have traditionally been brought against individuals, see, e.g., Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 389 (1971), and, in some cases, against corporations, see, e.g., Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 71–72 (2001) (declining to extend Bivens where plaintiff brought suit against a private corporation that managed a federal prison), 2) certain related claims, such as libel which is addressed in the second sentence of the free speech constitutional provision, are often brought against individuals and corporations, see, e.g., Immuno AG v. Moor-Jankowski, 77 N.Y.2d 235, 239, 567 N.E.2d 1270, 1271, 566 N.Y.S.2d 906, 907 (1991); Carter-Clark v. Random House, Inc., 196 Misc. 2d 1011, 1012, 768 N.Y.S.2d 290, 291 (Sup. Ct. N.Y. Cnty. 2003), aff’d, 17 A.D.3d 241, 793 N.Y.S.2d 394 (App. Div. 1st Dep’t 2005), 3) the Court of Appeals’ ruling in SHAD Alliance v. Smith Haven Mall was liability-based, and not based on a lack of subject matter jurisdiction, and that decision would not deprive the Court of Claims of subject matter jurisdiction given the broad construction of section 9.2 of the Court of Claims Act and the narrow scope of any exception from such jurisdiction under the terms of the waiver in section 8 of the Court of Claims Act, SHAD Alliance v. Smith Haven Mall, 66 N.Y.2d 496, 506–07, 488 N.E.2d 1211, 1217–18, 498 N.Y.S.2d 99, 105–06, and 4) a contrary ruling would offend the state’s public policy, discussed in Brown, “which seeks to reduce rather than increase the obstacles to recovery of damages, whether defendant is a private person or a public body,” Brown, 89 N.Y.2d at 180, 674 N.E.2d at 1134, 652 N.Y.S.2d at 228, because it would leave plaintiffs with no forum in which to seek compensatory damages against the State itself for a violation of free speech rights, see Smith v. State, 227 N.Y. 405, 409–10, 125 N.E. 841, 842 (1920) (noting that the court of claims’ jurisdiction was of the “broadest character”). 218 See Gail Donoghue & Jonathan I. Edelstein, Life After Brown: The Future of State Constitutional Tort Actions in New York, 42 N.Y.L. SCH. L. REV. 447, 528 (1998) (“Although the Brown decision did not specifically state that local governments in New York could be held liable for state constitutional torts, dicta in both the majority and dissenting opinions suggest that such lawsuits may be maintained.”); see also id. at 528 n.410 (“The applicability of Brown to municipalities can be inferred from the fact that municipal liability in New York is derivative of the state’s sovereign immunity.”). 215 216

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jurisdiction includes substantially similar claims that it also should have jurisdiction over free speech constitutional torts.219 The supreme court’s jurisdiction includes common-law tort actions against municipalities as well as against government officials.220 It also includes summary proceedings that are equitable in nature under Article 78 of the CPLR challenging state and local government action, inter alia, as arbitrary and capricious or contrary to law.221 The supreme court regularly decides cases in which a party challenges a state or municipal law, regulation, policy or practice as a violation of the state or federal constitutions.222 Therefore, the supreme court should have jurisdiction to entertain an implied state constitutional tort against a municipality. The next step in the Brown analysis is to determine whether the free speech clause is self-executing.223 “In New York, constitutional provisions are presumptively self-executing.”224 The language in the free speech clause of the state constitution225 contains an 219 See N.Y. CONST. art. VI, § 7; N.Y. JUD. Law § 140-b (McKinney 2014); see also Haywood v. Drown, 556 U.S. 729, 739 (2009) (“New York’s constitution vests the state supreme courts with general original jurisdiction and the ‘inviolate authority to hear and resolve all causes in law and equity.’ For instance, if petitioner had attempted to sue a police officer for damages under [42 U.S.C.] § 1983, the suit would be properly adjudicated by a state supreme court. Similarly, if petitioner had sought declaratory or injunctive relief against a correction officer, that suit would be heard in a state supreme court.” (citing N.Y. CONST. art. VI, § 7.a) (quoting Pollicina v. Misericordia Hosp. Med. Ctr., 82 N.Y.2d 332, 339, 624 N.E.2d 974, 977, 604 N.Y.S.2d 879, 882 (1993))); cf. Kagen v. Kagen, 21 N.Y.2d 532, 536, 236 N.E.2d 475, 477, 289 N.Y.S.2d 195, 198 (1968) (“If the Legislature shall create new classes of actions and proceedings, the supreme court shall have jurisdiction over such classes of actions and proceedings.” (quoting N.Y. CONST. art. VI, § 7.b) (internal quotation marks omitted)). 220 See, e.g., Martinez v. City of Schenectady, 97 N.Y.2d 78, 82–83, 761 N.E.2d 560, 563, 735 N.Y.S.2d 868, 871 (2001) (noting that plaintiff brought an action for money damages in supreme court against a municipality and individual police officers based on common-law torts and violations of state constitutional provisions). 221 See N.Y. C.P.L.R. 7803, 7804(a) (McKinney 2014). 222 See, e.g., Moran Towing Corp. v. Urbach, 99 N.Y.2d 443, 446, 787 N.E.2d 624, 625, 757 N.Y.S.2d 513, 514 (2003) (showing an Article 78 proceeding seeking to declare provisions of the N.Y. Tax Law that taxed consumption of petroleum to be facially unconstitutional under the Commerce Clause); Maresca v. Cuomo, 64 N.Y.2d 242, 247, 475 N.E.2d 95, 96, 485 N.Y.S.2d 724, 725 (1984) (challenging state constitutional provision mandating retirement for certain judges at age seventy as a violation of the Fourteenth Amendment to the United States Constitution). “With respect to the broad, general jurisdiction conferred upon the Supreme Court, it has been early noted that the court’s jurisdiction includes ‘all cases of every description in law and equity, from the most important and complicated to the most simple and insignificant.’” Maresca, 64 N.Y.2d at 252, 475 N.E.2d at 99, 484 N.Y.S.2d at 728 (quoting De Hart v. Hatch, 3 Hun 375, 380 (N.Y. App. Div. 1st Dep’t 1875))). 223 Brown v. State, 89 N.Y.2d 172, 186, 674 N.E.2d, 1129, 1137–38, 652 N.Y.S.2d 223, 231– 232 (1996). 224 Id. at 186, 674 N.E.2d at 1137, 652 N.Y.S.2d at 231. 225 N.Y. CONST. art. I, § 8 (“Every citizen may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press.”).

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affirmative grant of the right of free expression and free press followed by a separate clause that limits the authority of legislative bodies to restrict its guarantees.226 It defines a fundamental right that can be enforced by the courts, and enforcement of that right provides a basis for the court to grant necessary relief.227 In addition, the New York courts have held that actions of government officials that are determined to be in violation of the provision are invalid.228 Therefore, the free speech provision in article I, section 8 should be construed as self-executing.229 The next area addressed in Brown is whether implying a cause of action for damages is consistent with the language, history and purposes of the constitutional provision. New York’s free speech provision contains an affirmative grant of authority; language that was not included in the First Amendment.230 Despite the ratification of the First Amendment, it was thought to be important for New York to establish its own separate Bill of Rights and to highlight free speech as a core component of the Bill of Rights; the free speech provision was meant “to secure the citizen” against government acts to restrain such right.231 Therefore, implying a free speech cause of action to enforce the protection contained therein would follow from both the text and history of the provision. An effective damages remedy for public employees would also be 226 See O’Neill v. Oakgrove Constr., Inc., 71 N.Y.2d 521, 529 n.3, 523 N.E.2d 277, 280 n.3, 528 N.Y.S.2d 1, 4 n.3 (1988) (“Article I, § 8 of the Constitution assures, in affirmative terms, the right of our citizens to ‘freely speak, write and publish’ and prohibits the use of official authority which acts to ‘restrain or abridge the liberty of speech or of the press.’” (quoting N.Y. CONST. art. I, § 8)). 227 See N.Y. CONST. art. I, § 8. The free speech provision, like the two constitutional provisions at issue in Brown, the equal protection and search and seizure clauses in article I, sections 11 and 12 of the state constitution, “takes effect immediately, without the necessity for supplementary or enabling legislation . . . .” Brown, 89 N.Y.2d at 186, 674 N.E.2d at 1137, 652 N.Y.S.2d at 231. 228 See, e.g., People ex rel. Arcara v. Cloud Books, Inc., 68 N.Y.2d 553, 559, 503 N.E.2d 492, 496, 510 N.Y.S.2d 844, 847 (1986). 229 See Shields v. Gerhart, 658 A.2d 924, 930 (Vt. 1995) (concluding that the Vermont free speech provision is self-executing). Vermont’s free speech provision, “sets forth a single, specific right of the people to make themselves heard, [and] . . . the absence of a legislative directive supports a conclusion that the provision is self-executing.” Id. A self-executing provision is “complete in itself” and ordinarily “does not contain a directive to the legislature for further action.” Id. at 928 (quoting Davis v. Burke, 179 U.S. 399, 403 (1900)) (internal quotation marks omitted)). 230 Immuno AG v. Moor-Jankowski, 77 N.Y.2d 235, 249, 567 N.E.2d 1270, 1277, 566 N.Y.S.2d 906, 913 (1991). 231 Id.; see also id. at 249, 567 N.E.2d at 1277, 566 N.Y.S.2d at 913 (“[The words of article I, § 8], unchanged since the adoption of the constitutional provision in 1821, reflect the deliberate choice of the New York State Constitutional Convention not to follow the language of the First Amendment, ratified 30 years earlier, but instead to set forth our basic democratic ideal of liberty of the press in strong affirmative terms.”).

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“in furtherance of the purpose[s] underlying the”232 free speech constitutional tort because it would serve to discourage retaliatory behavior, compensate people who are injured by retaliation, and support greater expression in the workplace. There is no question that an award of damages for a violation of an individual’s right to free speech is recognized as a very effective means of furthering the purpose of the provision, to promote the free exchange of ideas, by deterring efforts to restrain speech and adequately compensating injured parties.233 Stated another way, “implying a damage remedy here [would be] consistent with the purposes underlying the dut[y] imposed by [the free speech provision] and is necessary and appropriate to ensure the full realization of” the fundamental right set forth in it.234 It would also be consistent with New York public policy which encourages the exchange of ideas and information, and supports transparency and accountability in government.235 Further, the general principles discussed in Brown, concerning the protections contained in constitutional provisions, would apply equally to the free speech provision.236 For example, the court noted that under the Restatement of Torts, “a court may imply a civil remedy from [a] constitutional provision[] . . . if it determines that the remedy is appropriate in furtherance of the purpose of the provision and needed to assure its effectiveness.”237 Implying a free Brown, 89 N.Y.2d at 191, 674 N.E.2d at 1140, 652 N.Y.S.2d at 234. See, e.g., Callahan et al., supra note 27, at 901 (“Meaningful damage awards for whistleblowers can deter reprisals and compensate whistleblowers for the severe negative consequences that usually accompany retaliation.”); see also Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 307 (1986) (“Deterrence is also an important purpose of this system [of awarding damages for constitutional violations] . . . .”); Brown, 89 N.Y.2d at 196, 674 N.E.2d at 1144, 652 N.Y.S.2d at 238 (“A damage remedy for constitutional torts . . . is the most effective means of deterring police misconduct, it is appropriate to the wrong and it is consistent with the measure by which personal injuries have historically been regulated.”). 234 Brown, 89 N.Y.2d at 189, 674 N.E.2d at 1139, 652 N.Y.S.2d at 233. 235 See People ex rel. Arcara v. Cloud Books, Inc., 68 N.Y.2d 553, 557, 503 N.E.2d 492, 494, 510 N.Y.S.2d 844, 846 (1986) (“New York has a long history and tradition of fostering freedom of expression, often tolerating and supporting works which in other States would be found offensive to the community.” (citing People v. P.J. Video, Inc., 68 N.Y.2d 296, 309, 501 N.E.2d 556, 564, 508 N.Y.S.2d 907, 915–916 (1986)); supra note 170 and accompanying text. 236 See Brown, 89 N.Y.2d at 187, 674 N.E.2d at 1138, 652 N.Y.S.2d at 232 (“The underlying rationale [of Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics] is that constitutional guarantees are worthy of protection on their own terms without being linked to some common-law or statutory tort, and that the courts have the obligation to enforce these rights by ensuring that each individual receives an adequate remedy for violation of a constitutional duty. If the remedy is not forthcoming from the political branches of government, then the courts must provide it by recognizing a damage remedy against the violators much the same as the courts earlier recognized and developed equitable remedies to enjoin unconstitutional actions. Implicit in this reasoning is the premise that the Constitution is a source of positive law, not merely a set of limitations on government.”) 237 Id. 232 233

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speech cause of action comports with historical antecedents discussing the purposes of the free speech provision.238 Therefore, implying a damages remedy would be consistent with the purposes and goals of the free speech provision. 239 The last step in the Brown analysis is to consider whether there is any reason that the courts should decline to imply a free speech constitutional tort. Since Brown, the principal argument that has been made in lower courts against implying another constitutional tort cause of action, including free speech, is that a constitutional tort is unnecessary because alternative remedies are available.240 B. Alternative Remedies 1. Subsequent Court of Appeals Decisions Brown determined that the only remedy claimants had available to them was a claim for damages, and that damages were a recognized and effective remedy to deter the wrongful behavior alleged in the complaint.241 As the court wrote, for the Brown claimants “it [was] damages or nothing.”242 The court also 238 See, e.g., CHAFEE, JR., supra note 1, at 29 (“The framers of [free speech] clauses did not invent the conception of freedom of speech as a result of their own experiences of the last few years. The idea had gradually molded in men’s minds by centuries of conflict. It was the product of a people of whom the framers were merely the mouthpiece. Its significance was not fixed by their personality, but was the endless expression of a civilization.”); 2 DOUGHERTY, supra note 157, at 121–22 (“By [the convention of 1821] . . . the government had been adapted to the feelings and views of the community ‘the only proper standard by which a good government can be formed.’”); 1 PROPOSED AMENDMENTS TO THE U.S. CONSTITUTION 1787–2001, at 183–84 & n. 2 (John R. Vile, ed., 2003) (“In many of the States opposition to the ratification of the Constitution was based upon the absence of specific reservation of the rights of the people. . . . The people did not feel secure in the enjoyment of life, liberty, and property without a written guaranty to protect them from encroachments of the General Government. To this end one hundred and twenty-four articles of amendment [(including 32 from New York)] were proposed by the seven conventions which suggested additions to the Constitution. In this numerous series, in addition to the miscellaneous suggestions treated elsewhere, were included many specific guaranties of individual rights.”); see also CHAFEE, JR., supra note 1, at 5 (“[T]he absence of the guaranty of freedom of speech was repeatedly condemned in the state conventions and in outside discussion. . . . New York . . . embodied a declaration of this right in [its] ratification[ ] of the federal Constitution.”). 239 Brown, 89 N.Y.2d at 188, 674 N.E.2d at 1138, 652 N.Y.S.2d at 232. 240 See infra Part V.B. 241 Brown, 89 N.Y.2d at 192, 196, 674 N.E.2d at 1141, 1144, 652 N.Y.S.2d at 235, 238. 242 See id. at 192, 674 N.E.2d at 1141, 652, N.Y.S.2d at 235 (quoting Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388, 410 (1971)) (internal quotation marks omitted). With respect to the availability of damages, the court also noted that the remedies created by Congress and the Supreme Court “fail to reach State action though it is on the local level that most law enforcement functions are performed and the greatest danger of official misconduct exists.” Brown, 89 N.Y.2d at 192, 674 N.E.2d at 1141, 652 N.Y.S.2d at 235. The reference to remedies created by Congress appears to refer to the

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concluded that even though both constitutional provisions had “common-law antecedents warranting a tort remedy for invasion of the rights they recognize,”243 constitutional torts should not be denied because existing common-law torts may be available to redress the claimants’ injuries.244 Subsequently, in Martinez v. City of Schenectady, the Court of Appeals concluded that the plaintiff, who had overturned her criminal conviction on appeal, was not entitled to pursue a claim for damages based upon article I, sections 1, 11 and 12 of the state constitution against the City of Schenectady in state supreme court.245 Martinez successfully challenged and suppressed a search warrant, which resulted in her release from prison after serving four years.246 The court found that Martinez had achieved her objective to deter police misconduct by suppressing the search warrant and excluding the evidence acquired in the search.247 Further, Martinez failed to show how an award of money damages would achieve a full realization of her constitutional rights because she had already secured a judicial determination in her criminal case that her constitutional rights against unreasonable search and seizure were violated.248 The court was doubtful that Martinez’s civil claim for damages had any merit because, inter alia, there was proof of her guilt beyond a reasonable doubt.249 fact that a claim for damages under 42 U.S.C. § 1983 is brought against government officials in their individual capacity, and not against the state itself because of the bar of the Eleventh Amendment and the Supreme Court’s holding that a state is not considered a “person” under § 1983. See U.S. CONST. amend. XI; Scheuer v. Rhodes, 416 U.S. 232, 237 (1974) (“[The Eleventh Amendment] bars suits not only against the State when it is the named party but also when it is the party in fact.”); Will v. Michigan Dep’t. of State Police, 491 U.S. 58, 71 (1989) (holding that the State and state officials sued in their official capacity are not “persons” subject to suit under 42 U.S.C. § 1983). See generally, RICKS & TENENBAUM, supra note 110, at 677. The reference to remedies created by the Supreme Court is most likely to Bivens-type actions which are usually brought against federal officials. 243 Brown, 89 N.Y.2d at 189, 674 N.E.2d at 1139, 652 N.Y.S.2d at 233. 244 Id. at 191, 674 N.E.2d at 1140, 652 N.Y.S.2d at 234. 245 Martinez v. City of Schenectady, 97 N.Y.2d 78, 82–84, 761 N.E.2d 560, 562–64, 735 N.Y.S.2d 868, 870–72 (2001). Article I, section 1 of the state constitution, inter alia, prohibits disenfranchising any member of the state or denying such person any rights and privileges except through legislative action; article I, section 11, inter alia, prohibits denying any person the equal protection of the laws; and article I, section 12, inter alia, prohibits unreasonable searches and seizures and mandates that search warrants be issued upon probable cause. N.Y. CONST. art. I, §§ 1, 11–12. 246 Martinez, 97 N.Y.2d at 82, 761 N.E.2d at 562, 735 N.Y.S.2d at 870. 247 Id. at 83–84, 761 N.E.2d at 563–64, 735 N.Y.S.2d at 871–72. 248 See People v. Martinez, 80 N.Y.2d 549, 552, 607 N.E.2d 775, 776–77, 592 N.Y.S.2d 628, 629–30 (1992). 249 See Martinez, 97 N.Y.2d at 84–85, 761 N.E.2d at 564, 735 N.Y.S.2d at 872. The court pointed to certain facts which strongly indicated that Martinez’s claim for damages was insubstantial: 1) Martinez had successfully challenged her conviction by suppressing the

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Under these circumstances, “[r]ecognition of a constitutional tort claim . . . is neither necessary to effectuate the purposes of the State constitutional protections plaintiff invokes, nor appropriate to ensure full realization of her rights.”250 Martinez indicates that for an alternative remedy to be sufficient to deny a constitutional tort, it must (1) serve the same or a similar deterrence objective as a constitutional tort, and (2) be shown that plaintiff does not need damages as a remedy in order to fully realize the alleged violation of his/her constitutional rights.251 In Martinez’s case, the court determined, based on the successful outcome of her criminal case and the weaknesses in her civil claim for damages, that plaintiff had fully secured the infringement of her state constitutional rights.252 The Second Department applied the second of these considerations in Lyles v. State.253 In Lyles, the appellate court affirmed the dismissal of a claim brought against the State based on an alleged unlawful search and seizure, detention, assault, and other accompanying conduct by New York State troopers that the claimant asserted were racially motivated.254 The claimant asserted his claims directly under article I, sections 11 and 12 of the New York State Constitution, the same two provisions at issue in Brown.255 In rejecting Lyles’ claims, the Second Department explained that the constitutional tort-remedy was not necessary in Lyles’ case to fully realize the plaintiff’s rights “because the alleged wrongs could have been redressed by . . . timely interposed common-law tort claims for assault and battery, false imprisonment, and the intentional and negligent injury to his

search warrant, id. at 82, 761 N.E.2d at 562, 735 N.Y.S.2d at 870, 2) but for this “technical error,” there was proof of Martinez’s guilt beyond a reasonable doubt, see id. at 84, 761 N.E.2d at 564, 735 N.Y.S.2d at 872, and 3) the federal courts had previously dismissed federal constitutional claims for damages that Martinez brought against both the city and the police officers who were sued in their individual capacity, id. at 82, 761 N.E.2d at 562, 735 N.Y.S.2d at 870. Therefore, “[p]laintiff has shown no grounds that would entitle her to a damage remedy in addition to the substantial benefit she already has received from dismissal of the indictment and release from incarceration.” Id. at 84, 761 N.E.2d at 564, 735 N.Y.S.2d at 872. 250 Id. at 83, 761 N.E.2d at 563, 735 N.Y.S.2d at 871. 251 See id. 252 Id. at 84, 761 N.E.2d at 564, 735 N.Y.S.2d at 872. 253 Lyles v. State, 2 A.D.3d 694, 695, 770 N.Y.S.2d 81, 82 (App. Div. 2d Dep’t 2003), aff’d on other grounds, 3 N.Y.3d 396, 820 N.E.2d 860, 787 N.Y.S.2d 216 (2004); see also Lyles v. State, 194 Misc. 2d 32, 37, 752 N.Y.S.2d 523, 526 (Ct. Cl. 2002), aff’d, 2 A.D.3d 694, 770 N.Y.S.2d 81 (App. Div. 2d Dep’t 2003), aff’d on other grounds, 3 N.Y.3d 396, 820 N.E.2d 860, 787 N.Y.S.2d 216 (2004). 254 Lyles, 2 A.D.3d at 694–95, 770 N.Y.S.2d at 81–82. 255 Id. at 695, 770 N.Y.S.2d at 82.

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property.”256 In other words, the court determined that a constitutional tort remedy could be denied where common-law torts are available and provide the same damages relief. The Lyles court’s reasoning that constitutional torts can be denied as an alternative remedy because plaintiff could have based his claim on analogous common-law torts, appears to be inconsistent with the discussion of common-law torts in Brown, where the court pointed to the differences between common-law claims and constitutional claims.257 Further, the Second Department did not address whether the availability of damages based on common-law torts was as effective a deterrent for the alleged wrongs as a damages remedy based on a violation of state constitutional rights. Lyles was appealed to the Court of Appeals, which affirmed the appellate division’s decision on jurisdictional grounds alone.258 The Court of Appeals stated that it was not reaching “the issue of whether a constitutional tort action may be maintained where alternative common-law tort remedies exist.”259 The Court of Appeals’ decisions in Brown, Martinez and Lyles suggest that courts need to evaluate alternative remedies to state constitutional torts from both a deterrence perspective and the full realization of plaintiff’s rights perspective. 2. Lower Courts Have Read Brown and Martinez Too Narrowly The lower New York courts that have applied Brown and Martinez have generally declined to imply any new state constitutional torts. The courts have considered as alternative remedies, actions or proceedings under New York’s whistleblower statute, a collective bargaining agreement, CPLR Article 78 proceedings, and common-law torts.260 However, the decisions have Id. at 695–96, 770 N.Y.S.2d at 82. See Brown v. State, 89 N.Y.2d 172, 191, 674 N.E.2d 1129, 1140–41, 652 N.Y.S.2d 223, 234–35. 258 Lyles v. State, 3 N.Y.3d 396, 400–01, 820 N.E.2d 860, 862–63, 787 N.Y.S.2d 216, 218– 19 (2004). 259 Id. at 401, 820 N.E.2d at 863, 787 N.Y.S.2d at 219. The Court of Appeals affirmed on the separate ground that the Court of Claims lacked subject matter jurisdiction because of the late filing of Mr. Lyles’ claim. Id.; see also Remley v. State, 174 Misc. 2d 523, 527, 665 N.Y.S.2d 1005, 1009 (Ct. Cl. 1997) (holding that a cause of action for damages based upon the due process clause of the New York State Constitution, article I, section 6, should not be implied where plaintiff had pled parallel common-law torts based upon an allegedly unlawful arrest, assault and battery, and other tortious conduct, that could provide him with the same relief as the constitutional tort). 260 See, e.g., Deleon v. State, 64 A.D.3d 840, 840–841, 882 N.Y.S.2d 351, 352 (App. Div. 3d Dep’t 2009) (affirming decision to deny filing a late claim in the Court of Claims to assert a 256 257

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not fully considered both factors—deterrence and full realization of the plaintiff’s rights—in evaluating alternative remedies. Similarly, the federal district courts in New York have generally dismissed pendent New York State implied constitutional tort claims because plaintiffs plead a related federal constitutional claim under 42 U.S.C. § 1983,261 or the court determined that one of the aforementioned actions or proceedings was available under New York State law.262 In addition, some federal courts have stated that

state constitutional tort due to being placed in a double bunk prison cell because claimant had an alternative remedy of an Article 78 proceeding to challenge the administrative denial of the prison grievance he had filed); Bullard v. State, 307 A.D.2d 676, 677–79, 763 N.Y.S.2d 371, 373–74 (App. Div. 3d Dep’t 2003) (dismissing a direct constitutional claim for money damages, which included a claim for violation of free speech, where plaintiffs had the alternative of an Article 78 proceeding to challenge a decision by the Department of Correctional Services to switch phone carriers for inmates to make long distance collect calls); Obot v. N.Y. State Dep’t of Corr. Servs., 256 A.D.2d 1089, 1090, 682 N.Y.S.2d 767, 769–70 (App. Div. 4th Dep’t 1998) (“Where, as here, an employee is subject to dismissal under a final and binding arbitration provision contained in a collectively negotiated agreement, the employee must assert the protections afforded by section [75-b.2] as a defense before the arbitrator.” (citing N.Y. CIV. SERV. LAW § 75-b.3(a) (McKinney 2014))); Augat v. State, 244 A.D.2d 835, 837, 666 N.Y.S.2d 249, 251–52 (App. Div. 3d Dep’t 1997) (denying, in the context of a motion to file a late claim in the Court of Claims and in the exercise of the court’s discretion, causes of action for violation of New York State constitutional due process and freedom of association provisions because each of these claims could be analogized to a common-law tort for which there are adequate alternate remedies). 261 See, e.g., Biswas v. City of N.Y., 973 F. Supp. 2d 504, 522 (S.D.N.Y. 2013) (dismissing pendent claims for false arrest and false imprisonment brought under New York State Constitution, article I, section 12, because the plaintiff had a common-law remedy available for these claims and had brought a § 1983 claim); Hershey v. Goldstein, 938 F. Supp. 2d 491, 520 (S.D.N.Y. 2013) (in a suit against officials and public safety officers of the City University of New York, the court retained certain federal claims under § 1983, but dismissed pendent claims under article I, sections 6, 8, 9, 11 and 12 of the New York State Constitution because the claims duplicated plaintiff’s other claims); Coakley v. Jaffe, 49 F. Supp. 2d 615, 628–29 (S.D.N.Y. 1999) (dismissing pendent state constitutional claims for alleged violation of equal protection and due process because, among other reasons, those provisions are almost coextensive with the federal constitutional provisions, and also dismissing a pendent state constitutional claim for unlawful search and seizure because a viable Fourth Amendment false arrest claim “will adequately protect the interests at stake”), aff’d, 234 F.3d 1261 (2d Cir. 2000); Wahad v. F.B.I., 994 F. Supp. 237, 240 (S.D.N.Y. 1998) (refusing to imply a private right of action for damages under the due process clause of the New York State Constitution, N.Y. Const. art. I, § 6, against municipal defendants because the plaintiff had “stated a viable Section 1983 claim . . . for the alleged due process violations”). 262 See, e.g., Singh v. City of N.Y., 418 F. Supp. 2d 390, 406–07 (S.D.N.Y. 2005) (declining to imply a damages remedy directly under the New York State Constitution for a plaintiff who claimed he was subject to retaliation for disclosing that his City of New York employer had failed to comply with the Fair Labor Standards Act), aff’d on different grounds, 524 F.3d 361 (2d Cir. 2008); see also id. at 406 (“[Singh’s] collective bargaining agreement provides a valid alternative of a grievance mechanism. . . . Singh even made use of this mechanism initially, although Singh’s union did not file a formal grievance on his behalf. Unlike the plaintiffs in Brown and Bivens, Singh has a valid remedy available to him—the grievance mechanism—to redress his alleged injury. Recognition of a state constitutional tort is not necessary to afford Singh a remedy.” (citation omitted)).

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an implied state free speech constitutional tort is unnecessary because of the presence of a First Amendment claim.263 For the reasons set forth in the prior section, these decisions have read Brown and Martinez too narrowly. 3. Evaluating Alternative Remedies to a Free Speech Constitutional Tort This article will consider five possible alternative remedies to a free speech constitutional tort and evaluate whether each alternative remedy could be effective in satisfying the two central components of Brown and Martinez; deterrence and full realization of plaintiff’s rights. The article will compare these alternative remedies to a proposed state free speech constitutional tort against the State in the Court of Claims, and will also briefly consider any different arguments that might arise if the constitutional tort is brought against a municipality, or individual government employees, in state supreme court.

263 See, e.g., Matthews v. City of N.Y., 957 F. Supp. 2d 442, 450 n.7 (S.D.N.Y. 2013) (dismissing plaintiff’s pendent claim that he was subject to retaliation for raising concerns with supervisors over an alleged police policy that imposed quotas mandating the number of arrests, summonses, and stop-and-frisks, on the grounds that the First Amendment and article I, section 8 of the New York State Constitution were “subject to the same analysis”); Carter v. Inc. Vill. of Ocean Beach, 693 F. Supp. 2d 203, 212 (E.D.N.Y. 2010) (“[F]ree speech claims under Article 1, Section 8 of the New York State Constitution are subject to the same analysis as free speech claims under the First Amendment.”), aff’d, 415 F. App’x 290 (2d Cir. 2011); Hous. Works, Inc. v. Turner, 179 F. Supp. 2d 177, 199 n.25 (S.D.N.Y. 2001) (“Free speech claims under the First Amendment and the New York State Constitution are subject to the same standards . . . .”), aff’d, 56 F. App’x 530 (2d Cir. 2003). The “same standards” conclusion appears to come from an earlier federal case, Pico v. Board of Education. In Pico, plaintiffs, students suing by their parents, challenged a school board practice of removing certain books viewed as “vulgar and in bad taste” from the library and curriculum and raised claims, inter alia, that the practice violated the free speech provision of article I, section 8 of the New York State Constitution as well as academic freedom. Pico v. Bd. of Educ., 474 F. Supp. 387, 396–97 (E.D.N.Y. 1979), rev’d and remanded on other grounds, 638 F.2d 404 (2d Cir. 1980). The court wrote: “The claims to freedom of speech and academic freedom under the New York State Constitution are governed by the same principles that apply under the first amendment to the federal constitution.” Id. at 394 (citing East Meadow Cmty. Concerts Assoc. v. Bd. of Educ, 18 N.Y.2d 129, 134, 219 N.E.2d 172, 175, 272 N.Y.S. 341, 345 (1966)). As support for this conclusion, Pico relied on the New York State Court of Appeals decision in East Meadow Cmty. Concerts Assoc., where the Court of Appeals cited both the First Amendment and article I, section 8 for the proposition that “[t]he expression of controversial and unpopular views . . . is precisely what is protected by both the Federal and State Constitutions.” East Meadow Cmty. Concerts Assoc., 18 N.Y.2d at 134, 219 N.E.2d at 175, 272 N.Y.S. at 345. The East Meadow Community Concerts Association court was not addressing whether the state constitution free speech provision affords the same or broader protection than the Federal Constitution, and, therefore, the Pico court’s citation of East Meadows for the “same standards” conclusion seems to be misplaced.

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a. Proposed State Free Speech Constitutional Tort for Damages Against the State in the Court of Claims i. An Alternative First Amendment Claim A First Amendment claim cannot be brought directly against the State.264 In addition, in certain respects discussed in Part III of this article, it was noted that there are concerns as to the effectiveness of the First Amendment remedy, such as the lack of protection of speech by government employees acting “pursuant to” their “ordinary job duties.”265 Since the State itself cannot be sued for damages under the First Amendment, a state free speech constitutional tort for damages against the State in the Court of Claims would be the only effective remedy against the State. Even if a court were to compare a suit against the State with a First Amendment claim against individual state officials, a state free speech constitutional tort would be just as effective a deterrent—if not more effective—because the State has an incentive to take steps to improve its training and supervision to avoid liability for violating a public employee’s free speech rights.266 The state constitutional tort as proposed in this article would also more fully realize a plaintiff’s right to be compensated for the alleged wrongful conduct because liability against the State would be based on respondeat superior and the other proposed standards would, inter alia, place a higher burden on the State to defend its actions and, generally, be more protective of a public employee’s free speech rights than the First Amendment standards.267 Therefore, a First Amendment claim against individuals should not be considered an

264 See Brown v. State, 89 N.Y.2d 172, 195, 674 N.E.2d 1129, 1143, 652 N.Y.S.2d 223, 237 (1996) (“It should be noted that Congress could not, in view of the Eleventh Amendment of the United States Constitution, overrule a State’s claimed sovereign immunity from suit in Federal or State courts. The dissent . . . fails to recognize that these concerns of federalism underlie much of the Supreme Court’s reluctance to expand the relief available under section 1983 and thereby unduly interfere with States’ rights.” (citing Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 98–99 (1984); Quern v. Jordan, 440 U.S. 332, 342 (1979))); supra note 110. 265 See discussion supra Part III.D–E. 266 See Brown, 89 N.Y.2d at 195, 674 N.E.2d at 1143, 652 N.Y.S.2d at 237 (“[T]here is merit to imposing liability on the party who is ultimately responsible—and who the wrongdoer will often blame for ordering or directing the conduct complained of, the State.”). 267 See discussion supra Part IV.C. The same concerns would be present if the alternative remedy that was proposed was a claim for equitable relief against state officials under the First Amendment. In that case, the additional arguments raised later in this article, see discussion infra Part V.B.3.a.iii–v, with respect to alternative claims for equitable relief under statutory and contractual provisions would apply as well.

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effective alternative remedy where a claim for damages is brought against the State in the Court of Claims. ii. An Alternative Common-Law Tort A common-law tort is also not an effective alternative to a free speech constitutional tort against the State. Most importantly, there is no common-law tort in New York that would cover an adverse employment action based on protected expressive conduct.268 Even if there were such a common-law tort, Brown explains that the common-law remedy will not have the same deterrent effect as a judicial finding that government officials violated a person’s constitutional rights, because constitutional torts address duties imposed upon government that are “far more serious than the private wrongs regulated by the common law.”269 Further, even if the measure of a plaintiff’s damages and relief is the same for a violation of a common-law tort as it would be for a violation of a constitutional tort, Brown and Martinez indicate that a plaintiff’s remedies would not be fully realized without an adjudication of the merits of the plaintiff’s constitutional claim.270 iii. An Alternative Article 78 Proceeding A CPLR Article 78 proceeding in state supreme court is better suited as a parallel proceeding to a constitutional tort action rather than as an alternative proceeding.271 The Article 78 proceeding is a summary proceeding that has a more limited scope of review than a plenary constitutional tort action.272 The Article 78 court can grant equitable remedies, such as reinstatement and back pay, but not damages.273 In some cases, reinstatement is not a practical or

268 See Murphy v. Am. Home Prods. Corp., 58 N.Y.2d 293, 297, 448 N.E.2d 86, 87, 461 N.Y.S.2d 232, 233 (1983) (“This court has not and does not now recognize a cause of action in tort for abusive or wrongful discharge of an employee; such recognition must await action of the Legislature.”); see also Taylor v. State, 160 Misc. 2d 120, 127, 608 N.Y.S.2d 371, 376–77 (Ct. Cl. 1994) (“The Legislature has thus created [in section 75-b of the New York Civil Service Law and section 740 of the New York Labor Law] causes of action not previously cognizable.” (citing Murphy, 58 N.Y.2d at 307, 448 N.E.2d at 93, 461 N.Y.S.2d at 239)). 269 See Brown, 89 N.Y.2d at 191, 674 N.E.2d at 1140–41, 652 N.Y.S.2d at 234–35. 270 See discussion supra Part V.B.1. 271 Cf. Carlson v. Green, 446 U.S. 14, 19–20 (1980) (“[An] amendment [to the Federal Tort Claims Act (FTCA)] made it crystal clear that Congress views FTCA and Bivens as parallel, complementary causes of action.”). 272 See N.Y. C.P.L.R. 7801, 7802(a), 7803–04 (McKinney 2014). 273 See Gross v. Perales, 72 N.Y.2d 231, 235, 527 N.E.2d 1205, 1207, 532 N.Y.S.2d 68, 70 (1988); Ozanam Hall of Queens Nursing Home v. State, 241 A.D.2d 670, 672, 661 N.Y.S.2d

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possible remedy for a public employee whose free speech rights have been violated, although, where such relief is available, it could be an effective deterrent.274 By contrast, damages—which would be available to compensate the plaintiff for injuries that result from the violation of an implied constitutional tort—are considered a very effective deterrent.275 Further, as noted in the prior section, plaintiff’s remedies would not be fully realized without an adjudication of the merits of plaintiff’s constitutional claim.276 iv. An Alternative Action Brought Under Section 75-b of the Civil Service Law For the same reasons as are discussed with respect to an Article 78 proceeding, an action brought under section 75-b of the New York Civil Service Law in state supreme court may also not be as effective a deterrent as a constitutional tort, and plaintiff is less likely to obtain a full realization of his/her rights.277 There are restrictions on when and to what extent the public employee whistleblower statute applies,278 and the statutory remedies, such as reinstatement and back pay, are equitable in nature and do not include compensatory damages.279 Even if a court could award “front pay” in lieu of reinstatement,280 54, 56 (App. Div. 3d Dep’t 1997) (“[Brown v. State] has no effect on the critical distinction between claims for monetary damages and those that are essentially equitable in nature.”). 274 See, e.g., Reiter v. MTA N.Y.C. Transit Auth., 457 F.3d 224, 230 (2d Cir. 2006); Allen v. Autauga Cnty. Bd. of Educ., 685 F.2d 1302, 1306 (11th Cir. 1982) (“[R]einstatement is an effective deterrent in preventing employer retaliation against employees who exercise their constitutional rights. If an employer’s best efforts to remove an employee for unconstitutional reasons are presumptively unlikely to succeed, there is, of course, less incentive to use employment decisions to chill the exercise of constitutional rights.”). 275 See supra note 233 and accompanying text. 276 See supra Part V.B.3.a.ii. 277 See Brown v. State, 89 N.Y.2d 172, 192, 674 N.E.2d 1129, 1141, 652 N.Y.S.2d 223, 235 (1996). 278 See discussion supra Part III.F. 279 See N.Y. CIV. SERV. LAW § 75–b.3(c) (McKinney 2014); N.Y. LAB LAW § 740.5 (McKinney 2014). 280 Section 740.5 of the New York Labor Law does not specifically refer to front pay but does include “the compensation for lost wages, benefits and other remuneration” as an available remedy. Lab. § 740.5. “Front pay” has been described as part of the plaintiff’s compensatory damages. See, e.g., Feldman v. Phila. Hous. Auth., 43 F.3d 823, 828 (3d Cir. 1994) (“The jury awarded [plaintiff] $616,696 in compensatory damages, of which $500,000 was for front pay.”); Thomas v. iStar Fin. Inc., 508 F. Supp. 2d 252, 258 (S.D.N.Y. 2007) (“[U]nder [New York] state human rights law, unlike Title VII, front pay is a legal remedy to be decided by the jury.” (citing Epstein v. Kalvin-Miller Int’l, Inc., 96 Civ. 8158 (PKL), 2000 U.S. Dist. LEXIS 17311, at *2–3 (S.D.N.Y. Nov. 28, 2000)). It has also been described as part of the court’s equitable relief. See, e.g., Deloach v. Delchamps, Inc., 897 F.2d 815, 824 (5th

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front pay does not necessarily provide the same full measure of relief as a compensatory damages award, which can include compensation for such injuries as reputational damage and emotional harm, and would be available in a constitutional tort lawsuit.281 Further, a damages remedy is a very effective deterrent, and plaintiff is more likely to secure a full realization of his/her constitutional rights by obtaining a judicial determination of his/her constitutional claim.282 Finally, it makes more sense for the section 75-b action and the constitutional tort lawsuit to operate as parallel proceedings rather than as alternative remedies. Section 75-b does not purport to be the exclusive means to bring a retaliation claim.283 In addition, the statute contains an election of remedies provision that does not even refer to claims brought under the federal or state constitution.284 Therefore, the New York legislature did not consider the state whistleblower statute to be the exclusive remedy for public employees to challenge retaliatory conduct.

Cir. 1990) (“‘Although front pay is an award of monetary relief, it is still an equitable remedy’ in section 1983 cases.” (quoting Haskins v. Boaz, 822 F.2d 1014, 1015 (11th Cir. 1987))). If it were considered damages, “front pay” might not be available in an Article 78 proceeding or in an action under section 75-b of the Civil Service Law because the remedies available in both are considered equitable in nature. See supra notes 274, 279 and accompanying text. 281 Front pay awards are lump sum payments for lost future earnings that can be reduced based on plaintiff’s actual “earnings in mitigation of damages” since leaving his/her prior employment. E.g. Giles v. Gen. Elec. Co., 245 F.3d 474, 489 (5th Cir. 2001) (quoting Patterson v. P.H.P. Healthcare Corp., 90 F.3d 927, 936 n.8 (5th Cir. 1996)) (internal quotation marks omitted); see Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 306–07 (1986) (“[W]hen § 1983 plaintiffs seek damages for violations of constitutional rights, the level of damages is ordinarily determined according to principles derived from the common law of torts. . . . [D]amages in tort cases are designed to provide ‘compensation for the injury caused to plaintiff by defendant’s breach of duty.’ . . . [C]ompensatory damages may include not only out-of-pocket loss and other monetary harms, but also such injuries as ‘impairment of reputation . . . , personal humiliation, and mental anguish and suffering.’” (quoting Gertz v. Robert Welch, Inc., 418 U.S. 323, 350 (1974); 4 FOWLER V. HARPER ET AL., THE LAW OF TORTS § 25.1, at 490 (2d ed. 1986))); see also Carey v. Piphus, 435 U.S. 247, 263–64 (1978) (noting that in § 1983 cases compensable injury includes emotional and mental distress). 282 See supra note 270 and accompanying text. 283 See CIV. SERV. § 75-b.3(c) (“[T]he employee may commence an action in a court of competent jurisdiction under the same terms and conditions as set forth in article twenty-C [section 740 of the Labor Law].” (emphasis added)); LAB. § 740.4(a) (“An employee who has been the subject of a retaliatory personnel action in violation of this section may institute a civil action in a court of competent jurisdiction for relief as set forth in subdivision five of this section within one year after the alleged retaliatory personnel action was taken.” (emphasis added)). 284 The election of remedies provision states that filing an action under the statute “shall be deemed a waiver of the rights and remedies available under any other contract, collective bargaining agreement, law, rule or regulation or under the common law.” LAB. § 740.7; see supra note 149; see also CIV. SERV. § 75-b.3(c) (“[A]n action [is brought] . . . under the same terms and conditions as set forth in article twenty-C [of section 740 in] the Labor Law.”).

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v. An Alternative Claim Under a Collective Bargaining Agreement or Another State or Local Law Providing Disciplinary Protections and Processes Public employees covered by the disciplinary procedures in a collective bargaining agreement or another state or local law generally have to assert a claim or defense based on retaliation for exercising their right of free speech—including a violation of the protections specified in Section 75-b.2 of the Civil Service Law—at their administrative or statutory disciplinary proceeding.285 Contractual and statutory grievance proceedings generally have a defined scope and specified remedies.286 Further, the arbitrator or hearing officer is not required to dismiss a grievance because the employee claims he/she was subject to retaliation based on his/her speech, unless the employee’s “dismissal or other disciplinary action is based solely on a violation by the employer” of section 75-b.2.287 This is a standard that appears to be more difficult for an employee to satisfy than the Pickering or Mt. Healthy standards under which the employee must demonstrate that his/her speech was a substantial or motivating factor in the adverse employment action.288 Therefore, the grievance procedures in a collective bargaining agreement or a statutory grievance procedure should not be considered an alternative remedy to a state free speech constitutional tort.289 Instead, for the same reasons as were discussed with respect to CPLR Article 78 and section 75-b of the Civil Service Law, the contractual or statutory disciplinary proceeding should serve as a parallel, not a substitute, alternative proceeding to a state constitutional tort.290 285 See supra note 151. But see Carter v. Dep’t of Corr., 92 A.D.2d 465, 459 N.Y.S.2d 5 (App. Div. 1st Dep’t 1983) (detailing that collective bargaining was meant to be the exclusive remedy, but parties may decide to allow alternative remedies in the agreement), aff’d, 62 N.Y.2d 670, 464 N.E.2d 988, 476 N.Y.S.2d 290 (1984). 286 See, e.g., CIV. SERV. § 75-a. 287 CIV. SERV. § 75-b.3(a) (emphasis added). Also, the scope of judicial review of a final and binding arbitration decision is limited. See, e.g., Santer v. Bd. of Educ. of E. Meadow Union Free Sch. Dist., 23 N.Y.3d 251, 261, 13 N.E.3d 1028, 1035, 990 N.Y.S.2d 442, 449 (2014). 288 See Verbeek v. Teller, 158 F. Supp. 2d 267, 278–79 (E.D.N.Y 2001) (detailing the restrictive standard set in place under New York law that refused to apply collateral estoppel to a § 1983 actions); supra notes 98, 119. 289 See Brown v. State, 89 N.Y.2d 172, 189, 674 N.E.2d 1129, 1139, 652 N.Y.S.2d. 223, 233 (1996). 290 See supra Part V.B.3.a.ii–iv. Further, the U.S. Supreme Court’s decision in Bush v. Lucas, which rejected a Bivens-style cause of action in a lawsuit by federal employees for violation of their First Amendment right to free speech based on claims of retaliation, is

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b. Proposed State Free Speech Constitutional Tort Against Municipalities in State Supreme Court291 When a municipality is sued for a state constitutional tort in supreme court, the analysis of the alternative claim defense will generally be similar to the analysis used when the State is sued. The principal difference is that a municipality, unlike the State, can be sued for a First Amendment violation under 42 U.S.C. § 1983.292 However, a First Amendment claim against a municipality will not be as effective in some respects as a state free speech constitutional tort. Specifically, the First Amendment claim against the municipality cannot be based on respondeat superior and requires proof that the adverse employment action was caused by a municipal policy, practice, or custom.293 In contrast, under New York law, municipalities may be sued for damages in tort based on respondeat superior, and the decision in Brown indicates that the same rule would apply to implied state constitutional torts.294 Therefore, a suit against a municipality under 42 U.S.C. § 1983 based on a First Amendment violation may not be as effective a deterrent and may be less likely to allow plaintiff to obtain a full realization of his/her rights, as compared to a constitutional free speech tort.295 c. Proposed State Free Speech Constitutional Tort Against Individual Government Officials and Employees in State Supreme Court Determining whether to imply a free speech constitutional tort against individual government employees and officials raises different interests and concerns. The Court of Appeals in Brown distinguishable. Bush v. Lucas, 462 U.S. 367, 368 (1983). Bush was specifically based on the elaborate and comprehensive system that Congress had created for federal civil service employees to resolve disputes, including alleged job reprisals as a result of expressive activities, and evidence that Congress had intended such disputes to be resolved exclusively in that framework. Id. at 384–86. The Court concluded that the benefits of deferring to Congress’ judgment clearly outweighed the costs of superimposing an additional remedial scheme. Id. at 389. 291 In this section and the following section, we only address points not already raised with respect to alternative claims against the State. 292 See supra note 110. 293 See supra note 110. 294 See Brown, 89 N.Y.2d at 180, 193, 674 N.E.2d at 1133, 1142, 652 N.Y.S.2d at 227, 236. 295 See id. at 189, 674 N.E.2d at 1139, 652 N.Y.S.2d at 233.

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found that liability under a state constitutional tort can be an effective remedy even where it lies against the governmental entity as opposed to the individual employee.296 The court also made clear that persons whose constitutional rights have been violated should be able to obtain a judicial remedy: “When the law immunizes official violations of substantive rules because the cost or bother of doing otherwise is too great, thereby leaving victims without any realistic remedy, the integrity of the rules and their underlying public values are called into serious question.”297 Under certain conditions, New York law and public policy provide governmental employees with absolute or qualified immunity from damages liability when they are sued in their individual capacity.298 However, government officials can be held liable for violation of an implied constitutional tort where their conduct falls outside the boundaries of such immunity.299 At the end of the day, establishing a cause of action for constitutional torts against individuals may be better left to legislative bodies which can weigh the competing legal, practical and policy considerations.300 VI. CONCLUSION Our society has long cherished the ability of citizens to freely exercise their right to speak on matters of public concern.

See id. at 194–95, 674 N.E.2d at 1142–43, 652 N.Y.S.2d at 236–37. Id. at 196, 674 N.E.2d at 1144, 652 N.Y.S.2d at 238. 298 The immunity can be absolute where “the action involves the conscious exercise of discretion of a judicial or quasi-judicial nature” or qualified, which essentially means that the conduct is shielded from liability except where there is evidence of bad faith or the action is taken without any reasonable basis. Arteaga v. State, 72 N.Y.2d 212, 216, 527 N.E.2d 1194, 1196, 532 N.Y.S.2d 57, 59 (1988); see also Haddock v. City of N.Y., 75 N.Y.2d 478, 484, 553 N.E.2d 987, 991, 554 N.Y.S.2d 439, 443 (1990) (“[W]hen official action involves the exercise of discretion or expert judgment in policy matters, and is not exclusively ministerial, a [governmental] defendant generally is not answerable in damages for the injurious consequences of that action.” (quoting Tango v. Tulevech, 61 N.Y.2d 34, 40, 459 N.E.2d 182, 185, 471 N.Y.S.2d 73, 76 (1983)) (citing Arteaga, 72 N.Y.2d at 216, 527 N.E.2d at 1195–96, 532 N.Y.S.2d at 59; Weiss v. Fote, 7 N.Y.2d 579, 585, 167 N.E.2d 63, 65–66, 200 N.Y.S.2d 409, 413 (1960))); Donald v. State of New York, 17 N.Y.3d 389, 395, 953 N.E.2d 790, 793, 929 N.Y.S.2d 552, 555 (1990) (“[W]hen official action involves the exercise of discretion, the officer is not liable for the injurious consequences of that action even if resulting from negligence or malice.” (quoting Tango, 61 N.Y.2d at 40, 459 N.E.2d at 185, 471 N.Y.S.2d at 76) (internal quotation marks omitted)). 299 See, e.g., Arteaga, 72 N.Y.2d at 216, 527 N.E.2d at 1196, 532 N.Y.S.2d at 59. 300 See Donoghue & Edelstein, supra note 218, at 529 (“[T]he New York Court of Appeals might hold ‘that the remedy against the State is sufficient to vindicate state constitutional rights and that any additional remedies [against individual state officials] must be authorized by the State legislature.’” (quoting Martin A. Schwartz, Recognizing Damage Suits Under New York Constitution, N.Y.L.J., Feb. 18, 1997, at 8)). 296 297

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Encouraging public employees to share their ideas and opinions, and identify potential abuses, can improve government programs, lead to greater transparency and accountability, and promote the broader public interest. In order to obtain these benefits, the law must assure public employees that an effective mechanism exists to deter retaliation for their exercise of the right of free speech. Unfortunately, the current First Amendment standards and whistleblower laws have not been effective in preventing retaliatory conduct. New York has a long history of supporting the constitutional right to free speech. As explained in this article, the New York courts have the authority to establish a state free speech constitutional tort that can serve as an effective deterrent against retaliatory actions and provide greater protection for public employee speech in the workplace. This article is intended to provide support for an expanded constitutional free speech cause of action that will allow an open and frank exchange of ideas. As the Court of Appeals wrote in SHAD Alliance v. Smith Haven Mall: “No one disputes that we have the power, indeed the duty, to assure that the protections provided by our State Constitution remain meaningful in light of emerging needs and changing social values.”301

301 SHAD Alliance v. Smith Haven Mall, 66 N.Y.2d 496, 503, 488 N.E.2d 1211, 1216, 498 N.Y.S.2d 99, 104 (1985).