Free speech, kind of ...

This public employee First Amendment case is interesting because the plaintiff actually engaged in protected speech (most do not under the Supreme Court's Garcetti ruling) but the City of Buffalo was allowed to discipline him anyway because his free speech was too disruptive.

The case is Delano v. City of Buffalo, a summary order decided on December 17. If a public employee speaks as a citizen and not as a public employee, then the First Amendment protects him from retaliation. That's the rule in Garcetti v. Ceballos, which the Supreme Court decided nearly 10 years ago. That rule has killed off many a First Amendment retaliation claim, as it's hard to show that a public employee spoke as a citizen and not pursuant to his official job duties. Apart from Garcetti, the Supreme Court also recognizes that management can discipline free speech people if the speech had the potential to disrupt the workplace. That's the rule in Pickering v. Board of Education, a Supreme Court ruling from 1968.

Plaintiff is a highly-decorated police officer who spoke publicly about the police department's investigation into the killing of a child. This is a matter of great public interest. But plaintiff also violated workplace directives in speaking out. The Court of Appeals (Jacobs, Leval and Calabresi) notes that "the value in Delano’s speech is admittedly strong. He spoke out about what he believes is an injustice in the investigation of what may have been the murder of a young girl. But the defendant’s interest is stronger. [Police Commissioner] Gipson had his own duty to ensure that he maintained a 'significant degree of control over [his] employees’ words and actions; without it, there would be little chance for the efficient provision of public services.'”

See that language about efficient public services? That's what Pickering is all about. The speech has value, but there is also a value in the efficient management of a public office. This is why plaintiff loses the case. Again, the Court of Appeals:

Here we have little trouble deciding that it was reasonable for defendants to predict that Delano’s conduct would be disruptive. Delano violated direct orders from superiors and other rules and regulations. He was ordered not to speak to the media or to investigate the Girard case. Yet he continued to conduct an independent investigation outside his regularly assigned duties, and he spoke to the media, supplying departmental photographs and videos to the press in violation of regulations. As a result, defendants were reasonable in concluding that the disruption had or could have had “a detrimental impact on close working relationships,” “imped[ed] the performance” of Delano’s
duties, or “interfere[d] with the regular operation of the” police department.