12/12/2011 06:30 pm ET Updated Feb 11, 2012

Punishing Cops for Hate Speech

How much, if any, protection does the First Amendment give to derogatory comments by police that involve racial, anti-semitic, or homophobic speech? Does it matter if the remarks are made in the officer's private capacity as a citizen rather than in his capacity as a police officer? Does it matter whether the remarks are made in the course of his official duties? Does it matter if the comments relate to an issue of public concern or public importance?

These questions go to the core of the First Amendment's protection of free expression. They are frequently encountered when the government as an employer seeks to discipline a public employee for speech-related behavior that the government claims is inconsistent with the proper and efficient functioning of the agency, threatens to disrupt the work of the employer, or undermines the public's respect and confidence in the agency. For constitutional purposes, government employment is different from private employment. Absent contrary legislation, a private employer can regulate the workplace any way he wants without worrying about the First Amendment. The constitution does not apply to conduct by private employers. However, the constitution most assuredly does apply to government employment, and to government employees in particular, including the police, who have the right to speak on matters of public concern, such as race, or other controversial topics.

There is a vast difference, however, between a police officer speaking as a police officer, and speaking as a private citizen. Assume that a police officer makes racially offensive remarks in connection with his official duties, for example, while interrogating a suspect, driving to the scene of a crime, or criticizing the conduct of a supervising officer. From the Supreme Court's 2006 decision in Garcetti v. Ceballos, the law is clear that such comments enjoy no constitutional protection at all, and a police officer can be punished for making them, whatever the reason, and whatever the circumstances. But what if those same derogatory remarks were made not in connection with the officer's official duties, but rather when the officer was acting in his private capacity in the same way as any other citizen? For example, what if the officer posts scurrilous racial comments on a Facebook page? Or engages in public in a derogatory caricature involving racial stereotypes? Or makes insulting comments in a public meeting on issues of race? The constitution protects the right of all persons, including police officers, to make racially offensive comments, as long as those remarks do not present a clear and present danger of harm.

The question is far from hypothetical. When it was learned a few days ago that police officers in Brooklyn, New York made racially offensive comments on a Facebook page that maligned West Indians who marched in a Labor Day parade as "animals," "savages," "filth," and suggested that somebody should "drop a bomb and wipe them all out," there were cries of outrage by leading City officials, who called the remarks "disgusting," "disgraceful," "reprehensible," and "racist" -- and called for an investigation. Unquestionably, the remarks by the police officers are ugly, and the officers who made them obviously harbor a racial bias. But such comments, however offensive, are about matters of public concern. Indeed, the public's perception of race and how society should respond to racial controversies are among the most important issues in United States politics. The question then is whether the Police Department can punish these officers for their off-duty private speech on a matter of public concern without violating the constitution.

For the answer we have to look to another Supreme Court decision -- Pickering v. Board of Education. Under the so-called "Pickering test," a government employer must determine, first, whether speech by the government employee was made as a private citizen (as opposed to speech relating to the employee's official duties) and second, whether the speech was made on a matter of public concern (as opposed to a matter of personal interest only). In Pickering, a public school teacher wrote a letter to the local newspaper critical of the Board's funding choices and was fired. But she wrote the letter as a private citizen on a matter of public concern. Under Pickering, a court must balance the employee's interest in expressing herself against any injury the speech caused or was likely to cause the government employer in terms of efficient promotion of public services and any disruption that the speech may cause. The employer may not punish the employee in retaliation because the speech is distasteful or critical. The teacher's letter in Pickering was about a matter of public concern, and the Board's interest did not outweigh her interest in free speech.

Applying the Pickering framework, the police officers in Brooklyn made their remarks on the Facebook page as private citizens, not in their official capacities, and their comments related to a matter of public concern. It then is necessary to balance the officers' private interest in being free to speak against the Police Department's interest in maintaining an efficient and professional police force that enjoys the public's respect and confidence. Under this balancing approach, the conclusion is inescapable that the officers can be punished for their comments. The contribution of their speech to further the public discourse over race in quite minimal; the damage to the Police Department's image and the public's perception of the Police Department is considerable. A Police Department needs to show the public that it enforces the law fairly, even-handedly, and without bias. A Police Department needs to show the public that it does not treat any segment of the population of any race, religion, gender, national origin, or sexual preference with abuse and contempt so that the particular minority views police as an oppressor rather than a protector. If that happens, respect and trust for the police is destroyed, and the work of the police in that community is impaired.

There is already more than enough criticism of police for engaging in racial profiling. There is considerable empirical evidence that black and Hispanic minorities are disproportionately targeted by the police for stops and frisks. The ability of police to investigate crimes, enlist the cooperation and testimony of witnesses, and give testimony themselves that juries will believe may be eroded unless the Police Department demonstrates a commitment to racial equality and promotes a public perception that it is not racially insensitive. Ironically, one of the officers who made the racially derogatory comments on the Facebook page was a prosecution witness in a recent criminal trial in Brooklyn. His remarks were exposed, and the jury acquitted the defendant.

The Facebook remarks by the Brooklyn police have no place in law enforcement. If the Police Department after an investigation finds that these remarks were made, the offending officers should be fired from the force. To paraphrase the famous dictum from Oliver Wendell Holmes, "police officers have a constitutional right to free speech, but they have no constitutional right to remain on the police force."