The case is Safepath Systems, LLC v. New York City Department of Education, a summary order decided on April 30. Safepath and Gym Door Repairs make those electric folding partitions that you see in school gymnasiums. Under state law and certain regulations, the City schools have to contract with plaintiffs to install these devices. Plaintiffs argue that the City stopped using their services in retaliation for plaintiffs' public objections to defendants' failure to comply with these mandates. Here is how the Court of Appeals (Calabresi, Livingston and Cabranes) describes plaintiffs' speech:
Specifically, plaintiffs allege that they notified defendants of their failure to comply, and, upon seeing no result, also notified the New York City Department of Investigations (“NYCDOI”) and the New York State Attorney General’s Office (“NYAG”). Plaintiffs also filed a lawsuit in New York state court pursuant to NYCPLR Article 78 to compel defendants to enforce the law, regulation, and manual. Plaintiffs allege that defendants thereafter “instructed contractors . . . to ‘never use’ GDRI or SPS on any NYCDOE or NYCSCA projects.” They also “removed (or caused the removal of) the Safe Path System from the specifications of NYCSCA.”In order to win a free speech case, the plaintiff has to show that it spoke out on a matter of public concern, and not solely on a matter that is personal to the plaintiff. My instinct would be that plaintiffs lose this case because their speech was personal to them, that the City failed to use their products. But the Court of Appeals sees it differently: "Plaintiffs’ complaints and their subsequent lawsuit were of public interest, because they were publicly asserting that defendants were failing to comply with the law, thereby allegedly endangering New York City schoolchildren. That there is an ancillary private interest (here, plaintiffs’ profit motive) does not preclude First Amendment protection for speech that accuses defendants of failing to follow the law."
Plaintiffs also win the appeal because they petitioned the government for redress of their grievances, also protected under the First Amendment. The Court notes that “[t]he rights to complain to public officials and to seek administrative and judicial relief from their actions are protected by the First Amendment.” That is true enough, but the Second Circuit has previously held that a lawsuit cannot predicate a free speech claim unless it addresses a matter of public concern. The Supreme Court has similarly held. But in this case, the Court says, "even if the topic had not been of public interest, by complaining to defendants, the NYCDOI, and the NYAG, and by filing the Article 78 petition, plaintiffs were engaging in protected speech." I could be wrong, but this seems at odds with prevailing law. I am sure plaintiffs don't mind. Their case goes forward.