Absolut Corruption parody was not corrupt enough under the First Amendment

A Corporal at the Ulster County Jail created an "Absolut Corruption" parody that he showed to a few of his co-workers. The parody's vodka bottle included photos of four Jail supervisors. He suffered retaliation over this and sued under the First Amendment. The Court of Appeals says he has no case.

The case is Singer v. Ferro, decided on April 1. I represented the plaintiffs in this case. The parody is reproduced at the end of the opinion. Under the First Amendment, public workers can speak out on matters of public concern without fear of retaliation. The Supreme Court has said that "A matter of public concern is one that 'relat[es] to any matter of political, social, or other concern to the community.'" Personal grievances don't count. While the Court of Appeals has previously said that allegations of public corruption qualify as public concern speech, Singer's speech does not cut it.

While the Absolut Corruption parody does not detail the nature of Singer's grievances, he testified at deposition about why he did it:

Singer apparently suspected Superintendent Ebel of in some way -- it is not clear how -- favoring Becker and Ferro for a promotion to captain, even though it is undisputed by Singer that another officer was promoted before Becker, and that Ferro was never promoted. Warden Acevedo was corrupt, Singer explained, because he had been arrested sixteen years before for soliciting prostitution. As for Ferro, Singer asserted that he was more likely to grant days off to his friends -- resulting in "payroll discrepancies" -- although Singer could identify no specific instances of such a practice. According to Singer, Ferro was also "famous for womanizing." And Becker allegedly was corrupt for having received a promotion to head the SERT Team despite his lack of supervisory experience. Finally, Singer testified more generally that his own complaints were ignored, and that certain of his colleagues were favored with respect to assignments and discipline.

The Court of Appeals usually asks whether the plaintiff spoke out in good faith. That is not the focus here. The Court instead asks whether the underlying corruption concerns rise to a matter of public concern. I have not seen the Second Circuit do this before. Anyway, although Singer was referring to unsavory acts by four superior officers at a public facility, the Second Circuit says that the "'corrupt practices' referred to by Singer's parody are at best of marginal 'public interest.'" Writing for the Court, Judge Sack explains,

Most – payroll discrepancies, promotions, discipline – are employment-related matters, as Singer acknowledged during his deposition. It is possible that corruption in these respects, if sufficiently egregious or widespread, might implicate the proper stewardship of the public fisc, or the effective operation of important and sensitive public institutions, and thus would constitute matters of public concern. But we do not think that the public has a substantial interest in minor payroll discrepancies amongst corrections department staff, an isolated promotion to middle management, an arrest sixteen years prior, or rumors of womanizing. Each of these falls far from the kind of legitimate and understandable concerns that the public would have as to these public institutions and their missions.

The Court notes its disapproval of the way that Singer was treated after management found out about the parody and it further suggests that his concerns as expressed in the parody were not insignificant. "But under the circumstances of this case, the defendants' alleged overreaction to the parody is not a constitutional issue for this Court to address."