City agency ban on speaking to media overturned

SECOND CIRCUIT–The federal appeals court in New York City (2d Cir.) unanimously held in late March that a city agency policy requiring employees to obtain permission before speaking to the media violated the employees’ First Amendment rights.

The panel noted with disapproval that the policy allowed the agency to determine in advance what kind of speech would disrupt agency operations, instead of punishing disruptive remarks after their effect has been felt.

In February 1996, Rosalie Harman, a 28-year employee of New York City’s Administration for Children’s Services, filed a lawsuit in federal District Court in Manhattan challenging on First Amendment grounds her suspension from her job for appearing on ABC’s “World News Tonight.” The agency suspended Harman for violating a policy that forbids employees to speak with the media regarding any policies or activities of the agency without first obtaining permission from the agency’s media relations department.

During the broadcast, Harman stated that “the workers who are considered the best workers are the ones who seem to be able to move cases out quickly,” and that “there are lots of fatalities the press doesn’t know anything about.” Harman appeared on the program shortly after the widely publicized death of six-year-old Elisa Izquierdo, allegedly as a result of a beating by her mother. The incident had become the subject of intense media scrutiny when it was revealed that ACS had received numerous reports about Elisa before her death.

Holding that government employees have a First Amendment right to discuss matters of public concern, Manhattan federal District Judge Denise Cote in November 1996 struck down the policy because it posed “a significant restriction on employee speech and deprive[d] the public of important information.” Cote further noted the absence of any evidence that employee contact with the media disrupted the agency’s operations.

On appeal, the city argued that its media contacts policy was necessary to prevent the disclosure of confidential information, and promoted the effective and efficient operation of the agency.

The appeals court unanimously upheld the lower court’s decision, holding the policy unconstitutional because it gave the city authority to prohibit speech altogether and to decide which employees could have contact with the media, with no “objective standards” to limit the discretion of the agency or requirement that an employee whose speech is limited receive timely review of the decision.

The appellate panel said that, in evaluating the validity of a restraint on government employee speech, courts must balance the interests of the employee as a citizen to comment upon matters of public concern and the interest of the state, as an employer, in promoting efficiency. Where an employee speaks on matters of public concern, the government bears the burden of justifying adverse employment action.

The court noted that Harman had a First Amendment interest in speaking out because there had been an ongoing public debate about the effectiveness of the child welfare agency, and that experienced case-management supervisors like Harman could contribute valuable insights to the discussion. In contrast, the court said that because the media contacts policy allowed suppression of speech before it takes place, the agency could prevent speech that would not actually have a disruptive effect. (Harman v. City of New York; Appellee’s Counsel: Jeremiah Gutman, New York City)