Facebook argument with ALJ raises tricky free speech concerns

This case highlights the complexities of the First Amendment as it governs public employees. It also highlights the danger of getting into political arguments with people on Facebook when you hold a public position that requires some degree of public trust.

The case is Davi v. Hein, a summary order issued on March 24. Plaintiff was an administrative law judge for the State of New York, resolving disputes when state issues an adverse determination on the amount of public benefits from the state's Office of Temporary and Disability Assistance (OTDA).  Plaintiff got into an argument on Facebook with a former law school classmate about the effectiveness of some public assistance programs. Plaintiff was critical of some of these programs. The former classmate told the Commissioner of OTDA what plaintiff had said. The classmate also told the Commissioner that she had sent the Facebook exchange to a legal aid group, Project FAIR, which represents individuals in these administrative hearings. Plaintiff was reassigned over his Facebook comments.

The district court ruling reprints the exchange. 

On October 28, 2015, Davi responded to an article that had been posted on the personal Facebook page of someone he knew. The article was from the website Daily Kos and entitled “Anti-poverty programs like food stamps are working. Let's expand them, not make more cuts.”¹ Davi and a law school classmate, Erin Lloyd, then had an argument in the comments of the Facebook post. Both the Facebook post and the argument appear not to have been accessible to the general public. ECF No. 83-8 at 105–07. Because the context is significant, I reproduce the relevant portion of their conversation verbatim (without correcting spelling or grammar):

*303 DAVI: This article and the underlying study use the wrong metric. These programs should be judge by how many people or families they get back on their feet and off government assistance, not how well these programs enable their recipients to be poor and collect government assistance for the rest of their lies.

LLOYD: “enable their recipients to be poor” – RIGHT! of course! people who need $150/mo to get their basic food needs met are just being ENABLED! The goal of any public assistance program should be to AID the poor. It's the job of politicians and employers to ... [See more]²

DAVI: Says who? Where does it say ANY of that in the Constitution? It is not the government's job to subsidize laziness and failure. I agree that there should most certainly be a safety net, but it should be of limited duration and designed to get people back to self-sufficiency. But I have zero sympathy for anyone who refuses to work and/or get the education or training to earn a living wage.

This country has turned welfare into a generational career path!

At this point, the conversation turned personal and nasty. Lloyd told the plaintiff “I remember your bullshit from law school, so I've got no patience for you. Who brought up the constitution? Not me. I didn't say a word about the law. I'm talking MORALS, my friend.” Davi responded: “If you are going to be that nasty then fuck you, too. Your ‘morals’ suck because they create an underclass dependent on government handouts that translates into generational poverty, while at the same time taxing productive members of our society to the breaking point.” ECF No. 83-1 at 4.

Davi v. Roberts, No. 16-CV-5060 (ERK), 2021 WL 810282 (E.D.N.Y. Mar. 3, 2021), order clarified on reconsideration, No. 16-CV-5060 (ERK), 2021 WL 2184873 (E.D.N.Y. May 28, 2021)

On October 28, 2015, Davi responded to an article that had been posted on the personal Facebook page of someone he knew. The article was from the website Daily Kos and entitled “Anti-poverty programs like food stamps are working. Let's expand them, not make more cuts.” Davi and a law school classmate, Erin Lloyd, then had an argument in the comments of the Facebook post. Both the Facebook post and the argument appear not to have been accessible to the general public. 

DAVI: This article and the underlying study use the wrong metric. These programs should be judge by how many people or families they get back on their feet and off government assistance, not how well these programs enable their recipients to be poor and collect government assistance for the rest of their lies.

LLOYD: “enable their recipients to be poor” – RIGHT! of course! people who need $150/mo to get their basic food needs met are just being ENABLED! The goal of any public assistance program should be to AID the poor. It's the job of politicians and employers to. . .

DAVI: Says who? Where does it say ANY of that in the Constitution? It is not the government's job to subsidize laziness and failure. I agree that there should most certainly be a safety net, but it should be of limited duration and designed to get people back to self-sufficiency. But I have zero sympathy for anyone who refuses to work and/or get the education or training to earn a living wage.

This country has turned welfare into a generational career path!

The district court then noted that, "At this point, the conversation turned personal and nasty." Here is what happened:

Lloyd told the plaintiff “I remember your bullshit from law school, so I've got no patience for you. Who brought up the constitution? Not me. I didn't say a word about the law. I'm talking MORALS, my friend.” Davi responded: “If you are going to be that nasty then fuck you, too. Your ‘morals’ suck because they create an underclass dependent on government handouts that translates into generational poverty, while at the same time taxing productive members of our society to the breaking point.”

DAVI: This article and the underlying study use the wrong metric. These programs should be judge by how many people or families they get back on their feet and off government assistance, not how well these programs enable their recipients to be poor and collect government assistance for the rest of their lies.

LLOYD: “enable their recipients to be poor” – RIGHT! of course! people who need $150/mo to get their basic food needs met are just being ENABLED! The goal of any public assistance program should be to AID the poor. It's the job of politicians and employers to ... [See more]²

DAVI: Says who? Where does it say ANY of that in the Constitution? It is not the government's job to subsidize laziness and failure. I agree that there should most certainly be a safety net, but it should be of limited duration and designed to get people back to self-sufficiency. But I have zero sympathy for anyone who refuses to work and/or get the education or training to earn a living wage.

This country has turned welfare into a generational career path!

At this point, the conversation turned personal and nasty. Lloyd told the plaintiff “I remember your bullshit from law school, so I've got no patience for you. Who brought up the constitution? Not me. I didn't say a word about the law. I'm talking MORALS, my friend.” Davi responded: “If you are going to be that nasty then fuck you, too. Your ‘morals’ suck because they create an underclass dependent on government handouts that translates into generational poverty, while at the same time taxing productive members of our society to the breaking point.” ECF No. 83-1 at 4.

Davi v. Roberts, No. 16-CV-5060 (ERK), 2021 WL 810282 (E.D.N.Y. Mar. 3, 2021), order clarified on reconsideration, No. 16-CV-5060 (ERK), 2021 WL 2184873 (E.D.N.Y. May 28, 2021)

*303 DAVI: This article and the underlying study use the wrong metric. These programs should be judge by how many people or families they get back on their feet and off government assistance, not how well these programs enable their recipients to be poor and collect government assistance for the rest of their lies.

LLOYD: “enable their recipients to be poor” – RIGHT! of course! people who need $150/mo to get their basic food needs met are just being ENABLED! The goal of any public assistance program should be to AID the poor. It's the job of politicians and employers to ... [See more]²

DAVI: Says who? Where does it say ANY of that in the Constitution? It is not the government's job to subsidize laziness and failure. I agree that there should most certainly be a safety net, but it should be of limited duration and designed to get people back to self-sufficiency. But I have zero sympathy for anyone who refuses to work and/or get the education or training to earn a living wage.

This country has turned welfare into a generational career path!

At this point, the conversation turned personal and nasty. Lloyd told the plaintiff “I remember your bullshit from law school, so I've got no patience for you. Who brought up the constitution? Not me. I didn't say a word about the law. I'm talking MORALS, my friend.” Davi responded: “If you are going to be that nasty then fuck you, too. Your ‘morals’ suck because they create an underclass dependent on government handouts that translates into generational poverty, while at the same time taxing productive members of our society to the breaking point.” ECF No. 83-1 at 4.

Davi v. Roberts, No. 16-CV-5060 (ERK), 2021 WL 810282 (E.D.N.Y. Mar. 3, 2021), order clarified on reconsideration, No. 16-CV-5060 (ERK), 2021 WL 2184873 (E.D.N.Y. May 28, 2021)

Public employees have the right to free speech on matters of public concern. But a series of Supreme Court rulings over the years allows public employers to discipline and even fire public employees if their public speech "would potentially interfere with or disrupt the government's activities" and that potential disruptiveness "was sufficient to outweigh the First Amendment value of that speech." This is known as Pickering balancing, named after a Supreme Court ruling from 1968.

While the district court ruled in plaintiff's favor and ordered plaintiff's reinstatement to his position as an administrative law judge, the Court of Appeals (Sack, Perez and Lohier) remands the case for the trial court to reconsider that result, as the appellate judges do not believe the trial court sufficiently considered the state's interest in dealing with the potential impact of Plaintiff's Facebook comments. It is possible, then, that plaintiff can lose the case if the district court finds that Plaintiff's speech, if discovered by the public, "would undermine OTDA's reputation by suggesting that its hearing officers were biased or unprofessional."