The case is Williams v. Town of Greenburgh, decided on July 22. I wrote about the due process holding in Williams here. (I also represented the plaintiff in the district court and on appeal). Williams also plead a First Amendment claim because he was thrown out of the facility after calling the administrator these names and generally commenting on the administrator's management of the facility.
The Second Circuit notes that the appropriate test under the First Amendment depends on the circumstances. In the employment context, the speech must touch upon a matter of "public concern" and the plaintiff must prove an "adverse employment action," i.e., termination or demotion. In the non-employment context, the plaintiff must show “(1) [the plaintiff] has an interest protected by the First Amendment; (2) defendants’ actions were motivated or substantially caused by his exercise of that right; and (3) defendants’ actions effectively chilled the exercise of his First Amendment right.”
The Court clarifies the law in advising us that "Because Williams was not a public employee when he criticized Bland, his speech need not have been on a matter of public concern for it to fall within the protection of the First Amendment for the purposes of this action." The question, then, is whether Williams' comments were protected First Amendment speech or whether they constitute unprotected "fighting words." It's free speech, the Second Circuit rules:
While comparing the manager of a recreational center to a fascist dictator easily qualifies as “personal abuse” in a colloquial sense, as a matter of law it does not rise to the level of “so-called ‘fighting words,’ those personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction.” . . . In Buckley v. Littell, we held that the use of the word “fascist” to describe a political commentator fell “within the realm of protected opinion and idea” and therefore was not actionable in a libel suit. 539 F.2d 882, 894 (2d Cir. 1976). Indeed, comparing a disliked authority figure to a fascist leader is an exceedingly common—arguably hackneyed—rhetorical device. . . . Accordingly, we hold that Williams’s comments were protected by the First Amendment.
The problem for Williams is that expulsion from the facility did not chill his speech, as he continued to advocate for himself in speaking to a member of the facility's advisory board and asking the Town Supervisor to reverse his expulsion months later. In that letter to the Supervisor, Williams sharply criticized the officials who kicked him out of the building. The Court concludes, "It is abundantly clear from the record that Williams’s readiness to hold forth on his perceived mistreatment at the hands of Bland and White was unimpaired by their allegedly punitive conduct."