associate with their labor union, Local 829. (Abramson Compl. PP 128-32.)
As an initial matter, Pataki argues that plaintiffs were never government employees and that declining to hire an applicant because of prior statements and associations does not violate the First Amendment. (Pataki's Sacco Memo. at 23 n.13.) Pataki is correct that most First Amendment § 1983 claims involve public employees who were fired for statements made during their employment, and not applicants who were refused employment because of prior statements. But even if plaintiffs are treated as government employees, they fail to allege violations of the First Amendment.
1. Sacco Plaintiffs' Free Speech Claim
The Sacco Plaintiffs contend that they were not rehired to work at the Javits Center because of their public opposition to the trusteeship imposed on their local union by its parent, IBT, and because of their opposition to the abrogation of their collective bargaining agreement. (Sacco Compl. PP 94-112.) A state cannot condition public employment in a way that infringes upon an employee's right to free expression. Keyishian v. Board of Regents, 385 U.S. 589, 605-606, 17 L. Ed. 2d 629, 87 S. Ct. 675 (1967). However, a government employer does not violate the First Amendment every time it takes adverse action based on an employee's speech. The First Amendment only protects a government employee's right to speak on matters of public concern. Connick v. Myers, 461 U.S. 138, 145-46, 75 L. Ed. 2d 708, 103 S. Ct. 1684 (1983). If the speech in question does not address a matter of public concern, there is no First Amendment violation. If, however, the speech is on a matter of public concern, the court must balance the interest of the employee "as a citizen, in commenting upon matters of public concern" and the interest of the government employer "in promoting the efficiency of the public services". Pickering v. Board of Education, 391 U.S. 563, 568, 20 L. Ed. 2d 811, 88 S. Ct. 1731 (1968).
A matter is of public concern under the First Amendment if it can be fairly characterized as relating to a matter of political, social, or other concern to the community. Connick, 461 U.S. at 145-46. Speech is more likely to be of public concern if the speaker is speaking as a citizen on matters of public interest, and not solely as an employee on matters only of personal interest. Id. at 147; Colburn v. Trustees of Indiana University, 973 F.2d 581, 585 (7th Cir. 1992). When a public employee speaks on matters only of personal interest, "absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee's behavior." Connick, 461 U.S. at 147. "The First Amendment does not require a public office to be run as a roundtable for employee complaints over internal office affairs." Id. at 149. The main concern is that citizens not be deprived of their fundamental right to comment on public matters by virtue of working for the government. The determination of whether speech is of public concern must be made as a matter of law based on the content, form, and context of the allegedly protected remarks. Id. at 147-48.
In light of its content, form, and context, neither the Sacco Plaintiffs' opposition to the trusteeship nor their reservation of rights under the old collective bargaining agreement are matters of public concern. The opposition to the trusteeship was essentially an internal dispute concerning the decisions of the union's leadership. The Sacco Plaintiffs voiced their opposition to the trusteeship as employees and union members. They were speaking as employees and union members, not as citizens. The reservation of rights under the collective bargaining agreement was also a personal, self-interested statement and not a statement made as a citizen on a matter of public concern. See id. at 148-49 (questionnaire distributed by assistant district attorney regarding confidence and trust in supervisors, office morale, and need for grievance committee were not matters of public concern).
The fact that the Sacco Plaintiffs' opposition was reported to and covered by the press, (Sacco Compl. PP 95-100), does not transform what is essentially an intra-union dispute into a matter of public concern. See Rahn v. Drake Center, Inc., 31 F.3d 407, 412-13 (6th Cir. 1994) (press release issued by public hospital employee challenging use of public funds and alleging work rules may endanger patients not matters of public concern). Furthermore, the private nature of the statements is not affected by the fact that they arose in the context of a public effort to clean up the Javits Center. Matters raised by disgruntled employees regarding internal management policies are not generally matters of public concern under the First Amendment even if they raise issues that are of general interest. See Colburn, 973 F.2d at 586 ("The fact that the issue could be 'interesting' to the community does not make it an issue of public concern."); Koch v. City of Hutchinson, 847 F.2d 1436, 1445 (10th Cir. 1988) ("What is of general interest to the public is not necessarily of public concern for First Amendment purposes.")
The Sacco Plaintiffs' statements concerned intra-union matters and the conditions of their employment. Plaintiffs spoke primarily as employees, not as citizens. Accordingly, the Sacco Plaintiffs' First Amendment free speech claim is dismissed.
2. Free Association
Both the Sacco and Abramson Plaintiffs allege that they were not hired to work at the Javits Center in violation of their constitutional right of free association. (Sacco Compl. P 105; Abramson Compl. PP 128-132.) In Roberts v. United States Jaycees, 468 U.S. 609, 82 L. Ed. 2d 462, 104 S. Ct. 3244 (1984), the Supreme Court delineated two types of constitutionally protected associational freedoms.
In one line of decisions, the Court has concluded that choices to enter into and maintain certain intimate human relationships must be secured against undue intrusion by the State because of the role of such relationships in safeguarding the individual freedom that is central to our constitutional scheme. . . .In another set of decisions, the Court has recognized a right to associate for the purpose of engaging in those activities protected by the First Amendment--speech, assembly, petition for the redress of grievances, and the exercise of religion.