“Punishing Cops for Hate Speech:” Prof. Bennett Gershman on HuffPost

“How much, if any, protection does the First Amendment give to derogatory comments by police that involve racial, anti-semitic, or homophobic speech?” asks Prof. Bennett Gershman in his latest entry on the Huffington Post. “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?”

The NYPD has come under fire recently after comments, allegedly made by police officers, on Facebook came to light maligning participants in the West Indian American Day Parade in Brooklyn.

According to Gershman:

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.

Read the whole piece here.


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