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GORDON v. GRIFFITH

March 16, 2000

DIANE GORDON, PLAINTIFF,
V.
EDWARD GRIFFITH, INDIVIDUALLY AND IN HIS CAPACITY AS NEW YORK STATE ASSEMBLYMAN TO THE 40TH ASSEMBLY DISTRICT, DEFENDANT.



The opinion of the court was delivered by: Weinstein, Senior District Judge.

MEMORANDUM AND ORDER

TABLE OF CONTENTS

I INTRODUCTION .......................................................... 39
II FACTS ................................................................. 40 A. Parties ............................................................ 40 B. Political Environment .............................................. 40 C. Protest and Press Conference ....................................... 41 D. Termination ........................................................ 41
III LAW ................................................................... 41 A. Free Speech ........................................................ 41 B. Republican Government .............................................. 42 1. Deference to State Legislature .................................. 44 a. New York State Assembly ...................................... 45 b. Political Considerations in Legislators' Staffing Decisions .. 45 2. Representation .................................................. 46 a. Early Theory ................................................. 46 b. Modern Practice .............................................. 47 i. Political Instruction .................................... 48 ii. Political Accountability ................................. 48 c. Staff Speech and Constituent Relations ....................... 49 i. Staff Speech ............................................ 50 ii. Legislators' Counterspeech .............................. 50 iii. Termination ............................................. 51
C. Related First Amendment Doctrines .................................. 52 1. Pickering ....................................................... 52 2. Elrod ........................................................... 54 3. Legislators' Concerns ........................................... 55 a. Pickering's Balancing ........................................ 55 b. Elrod's Job Classification ................................... 56
D. First Amendment and Staff Speech ................................... 57
IV APPLICATION OF LAW TO FACTS ........................................... 58 A. Federal Claims ..................................................... 58 B. State Claims ....................................................... 58
V CONCLUSION ............................................................ 59

I. INTRODUCTION

Plaintiff is a legislative aide who spoke out publicly on a controversial matter. Defendant, her boss and a state legislator, believed her comments were inappropriate. He fired her. The parties disagree on whether her right to free speech was violated.

Surprisingly, this appears to be an issue of first impression. In approaching this matter humility of federal judges is mandated by consideration of the needs of our state republican governments and by separation of powers. Judges with lifetime tenure must exercise restraint in overseeing the staffing decisions of legislators who periodically stand for office. This modesty is required even though, as James Madison recognized, our

independent tribunals will consider themselves . . . the guardians of those rights [in the Bill of Rights]; . . . an impenetrable bulwark against every assumption of power in the legislature . . .; they will be naturally led to resist every encroachment of rights expressly stipulated for in the Constitution by the declaration of rights.

Debates in Congress over Madison's Amendments, 8 June 1789, in John Kaminski & Richard Leffler, The Creation of the Bill of Rights 124-25 (1999).

Plaintiff brought this action pursuant to section 1983 of Title 42 alleging violations of her constitutional rights of speech and association. See 42 U.S.C. § 1983; see also U.S. Const. amend. 1. She has also alleged violations of the New York state constitution and state labor law. See N.Y. Const. art 1, § 9; N Y Labor Law § 201-d(2).

Defendant has moved for dismissal. See Fed.R.Civ.P. 12(b)(6). The motion is granted. Plaintiff has failed to state a claim under the Federal Constitution. As for the pendent state claims, prudential considerations require dismissal.

II. FACTS

The factual allegations in the complaint are assumed to be true. See Brass v. American Film Technologies, Inc., 987 F.2d 142, 150 (2d Cir. 1993).

A. Parties

Defendant Griffith is the New York State Assemblyman for the Fortieth Assembly District, which is located in Brooklyn, New York. He runs for office every two years. See N.Y. Const. art. 3, § 3.

In January 1997, Griffith hired plaintiff, Diane Gordon, as his Community Relations Director. See Compl. ¶ 7. Gordon worked in Assemblyman Griffith's Brooklyn district office as a salaried employee of the State of New York. See Compl. ¶ 11. Her responsibilities included:

• "Meeting with community leaders such as the presidents of tenant associations and block associations on behalf of Assemblyman Griffith" (Compl. ¶ 10);
• "Meeting with parents' groups, senior citizens, and other constituents on behalf of Assemblyman Griffith" (Compl. ¶ 10); and
• "Attending community meetings and events on behalf of Assemblyman Griffith" (Compl. ¶ 10).

While engaging in these activities, Gordon introduced herself as a representative of Assemblyman Griffith. See Compl. ¶¶ 12, 14.

In addition to these official duties, Gordon was required to "engag[e] in partisan political activity" on Assemblyman Griffith's behalf. Compl. ¶ 17. She "assisted political candidates friendly to Assemblyman Griffith during election time," using her personal time, vacation time and sick leave to do so. Compl. ¶ 17. Apart from her responsibilities to defendant, Gordon was in her own right a delegate to the New York State Democratic Party for the Fortieth Assembly District. See Compl. ¶¶ 6, 14. Both the plaintiff and the defendant run on the Democratic ticket.

B. Political Environment

Judicial notice of the political environment is taken. See, e.g., Kramer v. Time Warner Inc., 937 F.2d 767, 773 (2d Cir. 1991) ("[A court considering a motion to dismiss] may also consider matters of which judicial notice may be taken under Fed.R.Evid. 201."); Fed.R.Evid. 201(b) ("A judicially noticed fact must be one not subject to reasonable dispute in that it is . . . generally known within the territorial jurisdiction of the trial court"); id. 201(f) ("Judicial notice may be taken at any stage of the proceeding."); see generally Margaret A. Berger et al., Federal Evidence, § 201, at 201-07 to 97 (Joseph M. McLaughlin ed., 1997); John W. Strong et al., McCormick on Evidence § 329, at 493 (5th ed. 1999).

The backdrop of this case was the politically charged environment in New York City during the Spring of 1999. The City's police force was under intense scrutiny because of several incidents allegedly attributable to racially motivated "police brutality." In 1997 a Haitian immigrant, Abner Louima, was viciously beaten and sodomized by police officers while in custody. See United States v. Volpe, 78 F. Supp.2d 76, 79-81 (E.D.N.Y. 1999). Criminal charges were pending against the officers involved in the Louima matter and jury selection was underway. A second incident occurred on February 4, 1999; a 22-year old West-African immigrant, Amadou Dialo, died after suffering multiple bullet wounds in a police shooting. See People v. Boss, 261 A.D.2d 1, 701 N.Y.S.2d 342, 343-47 (1st Dep't 1999).

C. Protest and Press Conference

On May 5, 1999, plaintiff Gordon took part in a protest and press conference against "police brutality." Compl. ¶ 20. The demonstration occurred outside of the 75th Police Precinct Stationhouse. This Precinct is within Assemblyman Griffith's legislative district. See Compl. ¶ 20. Because this gathering occurred during a weekday, Gordon took a "personal day off from her job." Compl. ¶¶ 19-21.

According to plaintiff Gordon, the events were "organized in response to an incident wherein several officers associated with the 75th Police Precinct were alleged to have beaten a perpetrator even though he had been subdued and was already in handcuffs." Pl.'s Resp. Mem. at 14. Gordon spoke, expressing her view of "police brutality" both during the protest and at a related press conference. See Compl. ¶ 20; Pl.'s Resp. Mem. at 14. She did not assert that her opinions "represented the comments, beliefs or opinions of Assemblyman Edward Griffith." Compl. ¶ 24.

D. Termination

Upon reporting for work the next day, May 6, 1999, Gordon was summoned to Assemblyman Griffith's office. See Compl. ¶ 26. In the course of a heated exchange, Griffith allegedly stated:

Who do you think you are. I don't care if you are a district leader. You went against the 75th Precinct and the officers there. They are my friends. You are insubordinate.

Compl. ¶ 27.

Assemblyman Griffith then phoned the Precinct, apologized for Gordon's participation in the May 5 protest, and informed a Police Department Inspector that Gordon would be terminated for her participation. See Compl. ¶ 28. Gordon was immediately fired. See Compl. ¶ 29; Pl.'s Resp. Mem. at 14-15.

III LAW

A. Free Speech

Free speech has utilitarian foundations. It "assure[s the] unfettered interchange of ideas for the bringing about of political and social changes desired by the people.'" Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983) (quoting Roth v. United States, 354 U.S. 476, 484, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957)). By allowing the open exchange of ideas and the voicing of criticisms of those in power, free speech protects the heart of the democratic process. See, e.g., Garrison v. Louisiana, 379 U.S. 64, 74-75, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964) ("[S]peech concerning public affairs . . . is the essence of self-government."); see generally Alexander Meiklejohn, Free Speech and Its Relation to Self-Government 15-16, 24-27, 39 (1948) ("[Freedom of speech] is a deduction from the basic American agreement that public issues shall be decided by universal suffrage."). Without free speech our system of government might slip into tyranny by, and over, the ignorant. See Cass Sunstein, Free Speech Now, 59 U.Chi. L.Rev. 255, 301, 304-06 (1992) ("Restrictions on political speech have the distinctive feature of impairing the ordinary channels for political [change].").

Considerations of personal fulfillment also support freedom to speak. See, e.g., Curtis Publishing Co. v. Butts, 388 U.S. 130, 149, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967) (plurality opinion) ("[Freedom of speech] is as much a guarantee to individuals of their personal right to make their thoughts public and put them before the community as it is a social necessity required of our political system and an open society." (internal quotation marks and citations omitted)). The right promotes the basic human interests in self-development and self-expression, particularly as those interests serve to further individual participation in our democratic government. See, e.g., David A.J. Richards, Free Speech and Obscenity Law: Toward a Moral Theory of the First Amendment, 123 U.Pa. L.Rev. 45, 62 (1974) ("[T]he significance of free expression rests on the central human capacity to create and exercise symbolic systems, such as speech, writing, pictures, and [music]. . . . In so doing, it nurtures and sustains the self-respect of the mature person."); see generally Martin Redish, The Value of Free Speech, 130 U.Pa. L.Rev. 591, 601, 604 (1982) ("[Political] democracy is merely a means to — or, in another sense, a logical outgrowth of — the much broader value of individual self-realization.").

Despite its importance, speech is not afforded absolute protection. See, e.g., United States v. Frame, 885 F.2d 1119, 1133 (3d Cir. 1989) ("The rights of free speech and association are not absolute."). The strength of the barrier to interference varies with the asserted government interest in restricting particular speech. Greater consideration is "given to the government['s interest] when it acts as employer rather than as sovereign." Jeffries v. Harleston, 52 F.3d 9, 13 (2d Cir. 1995) ("[W]e have given substantial weight to government employers' reasonable predictions of disruption, even when the speech involved is on a matter of public concern, and even though when the government is acting as sovereign our review of legislative predictions of harm is considerably less deferential." (quoting Waters v. Churchill, 511 U.S. 661, 673, 114 S.Ct. 1878, 128 L.Ed.2d 686 (1994) (plurality opinion))).

Even as an employer, the government cannot, in the absence of an "appropriate reason[]," terminate public employees for their speech. See Elrod v. Burns, 427 U.S. 347, 360, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976). Individuals do not surrender all First Amendment protection by joining the ranks of government employment. See United States v. National Treasury Employees Union, 513 U.S. 454, 465, 115 S.Ct. 1003, 130 L.Ed.2d 964 (1995); Luck v. Mazzone, 52 F.3d 475, 476 (2d Cir. 1995) (per curiam); Bowen v. Watkins, 669 F.2d 979, 982 (5th Cir. 1982).

Public employees are entitled to a substantial measure of asylum from dismissals and threats of dismissal for speaking, including those who would otherwise be terminable at will. Unfettered discretion to dismiss people employed by the government because of their speech would arm those in power with a "potent means" of suppressing information the public should have. See Pickering v. Bd. of Educ., 391 U.S. 563, 574, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968) ("[T]he threat of dismissal from public employment is . . . a potent means of inhibiting speech.").

Only where government employees' interests in speaking are outweighed by a substantial and legitimate government interest can they be denied protection from discharge because of their speech. See, e.g., Dangler v. New York City Off Track Betting Corp., 193 F.3d 130, 140 (2d Cir. 1999) ("[A] public employer cannot, with impunity, fire an employee who `blew the whistle' on other ...


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