I think a better case for their firing would have been that the city can not afford to have known bigots working on the police force or in the fire department. Cops and fire-men in NYC have to deal with all races and creeds every day in sensitive, possibly life and death, situations. These officers would not be able to do their duty because they were identified as bigots. Can you imagine if one of the cops was ever involved in a shooting of a black? Or what if, like the white officer in the OJ Simpson case, a history of bigotry so undermined the credibility of evidence that someone was found "not guilty"? The city has to think of these scenarios. The police force has to be so above suspicion in order to do their job (which sometimes involves shooting at people) that the city clearly has a vested interest in weeding out practicing bigots.
From what I heard and read, however, the city said they needed to fire them to avoid riots, and the judge didn't buy it.

trip - I can't see the reference (the link brought me to the AP main page) and I don't know the case.

Patrick: I think you have a point. My impression is that the judge essentially said, “It’s not that you can't fire these guys with cause, it’s that (a) you didn't really fire them for the reason you said you did and (b) even if you did fire them for the reason you said, it's a flimsy reason.”

However, if these guys were superior policemen and firefighters, I would tend to think that what they do on their own time is their business. (Short of illegal activities, perhaps, but that’s a possible red herring.)

I’ll repost a link.

What they do in on their own time in their own home may be their business, but what they do in a parade in front of their whole neighborhood is everyone's business.

Patrick: You may not violate constitutional rights, even if it would arguably make people more comfortable with your business/organization.

The only valid way they could have been fired is if their alleged bigotry affected their actual job performance - and no, your actual job performance cannot be evaluated on the perceptions of the general public. If the city can show that they did their job in a racist fashion, they could be fired for cause - but only for failing to do their job correctly, not because they are racist.

Other examples you might be more sympathetic towards:

You couldn't fire an observant Muslim as a airport security guard, even if the post-9/11 pubic was less-than-confident in him, or because people complained or refused to fly.

You couldn't fire a black doctor just because a white population didn't feel "comfortable" being treated by someone of a different race, even if patients avoided your hospital over it.

You couldn't fire a INS agent of Mexican descent, just because people think they might be more tempted to "look the other way" at the border.

These are all (like speech), Constitutional rights. The parade was on their own time, and they are allowed to say what they want - so long as they do their job correctly.

Interestingly, there is one major exception to this: you are allowed to discriminate on the basis of national origin when hiring restaurant staff. In other words, a Chinese restaurant is Consitutionally allowed to only hire Chinese waiters. (However, no cuisine is allowed to hire only "white" or "european" waiters).

And "free speech" wouldn't be much of a right if you were only allowed to do it "in your own home."

Ditto to Jimpy on the job-performance/alleged racist speech distinction.

But to Tk, I ask do you know for a fact that what they were doing was not "a parody of the stereotypical views of their white neighbors"? Let's say it was not a parody but outright racism - obviously they're in the clear as far as keeping their jobs, but their "parody" explaination has to be accepted until someone can demonstrate a pattern of racist speech and beliefs on the part of those individuals. Absent that, you're profiling them for being - what? - white, clubby, Irish, suburban firemen.

Let's say it was in fact a parody - the joke seems so badly executed and overdone (not that I was there), it's understandable that a reasonable person can doubt the jokesters' true intent. This is what they should have known in advance, and why they should have either revised the stunt or trashed it altogether. But they were firemen, and not Jay Leno with a staff of experienced writers and focus groups to draw from.

But to me the most interesting thing is that the firing may have been an instance of political correctness squared. First you had the float, then you had a mayor reeling from "the political firestorm he had faced over his handling of the Million Youth March five days earlier." The firemen claim they were "scapegoats", tossed to the black community to get them off Guiliani's back (for sending "too many" cops to large gathering of black youths).

In the eyes of judicial rulings, events are often stand-alone occurances. In politics, they're always connected to a usually long, twisting and twisted chain.

Propagating racist ideas, while Constitutionally protected, is not the same as being born black or Hispanic, or being a Muslim. In your examples, what if that black doctor had walked around town saying he hated white people? What if the Muslim had express support for the Sept 11th hijackers? And what if the Border Patrol guard had written a letter in the local paper saying that the U. S. should have open borders no one should ever be deported? All of these are free thoughts and maybe even legitimate opinions, but I would not criticize any of the above from being fired (or at least reassigned so that can not have an impact on the areas in question). Here is another example: what if a Secret Service Agent protecting the President said on record,"This Bush guy is a real A-hole, I wish someone would put a bullet in him" Wouldn't that be a reason to fire them? Or would we have to wait around until someone actually took a shot to see if said agent took the bullet? As for the "in their own home comment", I meant that to illustrate that these were public acts that everyone could see. I do not recommend bugging cops homes or reading their e-mails to check for racism. I will give them the benefits of the doubt.

Also, Jimpy, could you please expound a little on "you are allowed to discriminate on the basis of national origin when hiring restaurant staff"?

Is this state, federal? What's the actual, how did it come to pass and when? Was there a "majority ethnicity" rationale for excluding Euro-whites from this permissible discrimination? What about, say, white jews who own a kosher restaurant catering to a mostly all-white jewish clientele? Just curious.

Patrick, I look forward to Jimpy's take on your last comment, but I'll point out that the black doctor and the Border Patrol guard are indeed expressing legally-protected "free thoughts", but the Muslim and the Secret Service agent are not. Each case presents two potential issues: Can each be fired, and/or arrested?

The Border Patrol guard could probably not be legally fired, unless his actions on the job started mirroring the sentiments expressed in his letter (i.e. letting illegal migrants enter).

The Muslim is fired ouright, because his expression reflects an unwillingness to perform his job. The TSA might argue that even though he had been an "observant" employee (as Jimpy said), TSA can't watch him every minute he's on duty to see if his actions might at some point mirror his sentiments (i.e. let a weapon pass thru). The law is less clear re his legality, but it's likely that the content, nature and context of his expression would be lawful grounds for his arrest and interrogation as a potential terror threat. The Supreme Court and other federal judges have given police wide discretion in defining, assessing and pursuing terror threats.

The S.S. agent's case is less nuanced - he's fired for the same reasons, and almost certainly arrested and investigated for merely uttering those words.

Now, let's say the firemen stood on their float and said, "Fires in black people's dwellings should be extinguished!" Fired, probably, but not arrested.

Patrick:

From a Constituional standpoint, free speech (even speech that "propagates racist ideas") ,is the same as being born black or Hispanic, or being a Muslim. They are all fundamental Constitutional rights. The Constitution does not distinguish among them. A violation of the 14th Amendment is no better or worse than a violation of the 1st Amendment. Heck, I chose the Muslim example because speech and religion are in the same amendment. They can't be treated differently.

In each of your counter-examples, the speech you raise would be constitutionally protected. The state could take no action against any of them, unless they could show derliction of duty (the black doctor mistreated white people, the Muslim screened inadequately, the Border Patrol guard failed to enforce the border). The ACLU would win any of the examples you cited, in a slam-dunk.

Your Secret Service example is your best, but even then, I'd like his odds in the courtroom. I suspect they would have to just give him a desk job (I'm sure they could take you off of "take-a-bullet" detail, but that is hardly the sole function of the Secret Service). More likely, they would fire him and settle the lawsuit.

Finally, I knew what you meany by the "in their own home" comment. But I repeat my critique - free speech is meaningless if it isn't public speech. It would be a sad day if we only "protected" speech that the public wasn't allowed to hear.

To quote Noam Chomsky: "If we don't believe in freedom of expression for people we despise, we don't believe in it at all."

MD -

The restaurant example is based on caselaw, and it is one of two dirty-little-secrets about equal protection:

Basically, people have tried over and over again to sue restaurants on the basis of racial, religious, or national origin discrimination, and lost every time. It is totally irrational, intellectually unsound, and kind of funny. It is just an odd example of judicial power: No judge ever wants to rule that you have to hire an elderly Jewish woman to wait tables at Szechuan Palace, or a Chinese immigrant to wait tables at Katz' Deli.

The other one is even better: Actors.

Ever wondered why black roles are almost always played by black people, and white roles always played by white people? Coincidence? Of course not! If Sam Mendes has decided that Gypsy Rose Lee is going to be white, black actresses need not apply. End of story. even if world's best black actress tried out for the part, and even in Sam announced in public that he would only cast a white person, it is totally legal.

Racist? Sure! But no court has ever been willing to hold that "equal protection" applies to the hiring of actors. Just one of those things.

Not to muddle this truly fascinating legal discussion, but an absract from Jimpy's comments above reminds me of another interesting case.

The comment: "You couldn't fire an observant Muslim... because people complained or refused to fly."

The case: Weeks after 9/11, passengers boarded a plane at LAX. Before push-off from the gate, they noticed there were two Arab passengers on board (that's Arabs, not Sikhs). With unanimity, all non-Arab passengers informed the pursor they would get off the plane before flying with the two Arab men. It was "Us or them."

What did the airline (United or American) do? They booted the two Arabs. I think both went home rather than attempt an alternate flight.

Now the two Arabs have filed discrimination suits. No doubt, the airline will quietly settle to make them go away. And while this was an obvious case of discrimination, is there any legal basis for such discrimination with cause - such as widespread fear, reasonable in the moment or not? Alternately, does a business have "the right to refuse service" even if refusal is based on fear, which is based on discrimination? Do they have the right to choose, say, 100 passengers over 2 passengers, even if said choice is based on fear and discrimination?

If there's any takers, I'm interested in this legally, not morally. Morally, I know I too would have refused to fly with them, because my higher moral duty is not to battle discrimination, but to keep on living. Especially if I have dependents. In fact, if I have a wife and children, it would be simply irresponsible to get on that plane. And the Pearly Gates would offer no moral points for going down on that aircraft - especially after all we learned on 9/11.

Unfortunately for the airline, their legally-mandated criteria might be different. Any ideas?

Jimpy, you raise a fascinating point with casting and dirty-little-secret unequal protection. But I think an additional support mechanism for this legal abberation is "artistic freedom" as concerns the end product, but not the production thereof. The law cannot force Crest to add brown to a multicolored toothpaste, but it can force it to promote brown workers who may have been passed over because they're brown.

But in movie casting, fluidity trumps all ideals. If a film director decides a character's going to be black, the "artist" has defined a certain quality of that character and any actor who cannot portray that quality need not apply, end of story. Unless, of course, the studio executive has a white girlfriend who's an aspiring actress. Then the director will quickly redefine that certain quality, and probably provide the character with more dialogue as well.

And in the short-lived but brilliant Fox comedy "Action", Jay Mohr's character is producing a movie wherein a white bird alights onto an actress' shoulder. But an African-American representing black birds shows up in Mohr's office, and convinces him to "give other birds a shot." The scene is reshot with a black bird.

The one exception to the fluidity: If you're casting a TV show with a courtroom scene and you've got a character called "the judge", it's understood that non-black, non-female actors need not apply.

Jimpy-
I agree that freedom of speech is protected constitutionally, but it (like assembly, press, religion) does have its limits. You can't yell fire in a crowded theater because it could cause someone to be hurt. Thus safety trumps speech. Same with Amish buggies, for the safety of all, buggies need reflectors. For the safety off all, the New York City police and fire departments need to be seen as being anti-racist. If a person with dark skin can't trust that a civil servant will not be openly racist then why should they trust them or listen to them?Inevitably someone will get hurt.
As far as the examples above, I think a jury or judge could be easily convinced that a public declaration that "I am not going to do my job" is a justification for letting someone go. You don't have to wait until they actually stop doing their job, especially if there are life and death issues involved. I know that there is a leap from the examples to a literal saying of "I am not going to do my job", but I don't think it would be hard to convince a jury that a reasonable person could interpret that from what they did. Which Brings me back to Broad Channel. A reasonable person would interpret the men's actions as being racist and in promoting the illegal dragging of the Kasper black man. A reasonable person therefore would think they are racist and approved of said dragging. This same reasonable person, when in a domestic dispute, would not really listen to the racist/pro-dragging police officer when he tried to calm him down. That may not be entirely the cop's fault-after all racist are right too sometimes-but in a volatile situation you don't want any extra stress. And I think a court would see it that way.

3 questions:

1. In the float were they identified as firemen ? That is, were they engaged in actions which would clearly bring the fire department into disrepute ?
2. Is there a "morals / conduct" clause in the firemen's contract ? Are they abjured from taking actions which might reflect poorly on the city, regardless of their legality ?
3. Are civil servants allowed to publically endorse illegal acts ? Turn it around -- suppose the firemen had been on a pro-OBL float, applauding terrorism. Could the city fire them for publically endorsing criminal activity ?

Patrick -

Before I post my response to you, I just want to say that I'm enjoying this debate, in part because I happen to have a real passion for this stuff. I love law - I'm just a total weirdo. And, of course, I've spent a great deal of time studying it. So if I come off as very argumentative, I really don't mean to. Sometimes when I engage in legal debate, it is hard not to take the tone of law school (which can be very pompous and argumentative).

All of that is to say, I very much enjoy debating these points with you, and I hope you don't take offense at my counter-jabs.

O.K., on to the ass-kicking: :-)

Patrick -

The fundamental problem with your argument is that the court, in fact, does not see your way.

The police and fire departments in fact specifically raised your argument - that their overall effectiveness would suffer if these three weren't punished. Here is what the court said about that:

"Even if plaintiffs termination arose our of a genuine concern for potential disruption, the Court finds defendants' concern was unreasonable and, in any event, insufficient as a matter of law to outweigh plaintiff's constitutionally protected speech rights." (my italics). The "disruption" in this particular paragraph was not the riots, but the claim that the departments overall effectiveness would be undermined.

In other words, the court specifically ruled that the "loss of effectiveness" argument was unreasonable on its face, and that even if it had been reasonable, it still wouldn't have been a good enough reason to trample someone's free speech rights.

The judge went on to lambaste the concept as pertains to both the potential "riot" and the potential "loss of effectiveness:"

"Allowing speculative or conclusory statements regarding potential community reaction to constitute a legally sufficient government interest is, in essence, alling a "heckler's veto" to quash unpopular speech, a notion long rejected by the Supreme Court."

In short, you can't take someone's rights away because you are worried other people will get mad at you if you don't.

The decision will be published next Monday at which time, if anyone cares, I'd be happy to post a link (my info is from the New York Law Journal front page article from yesterday).

One last thing:

I'm always a cautious cynic - I assume I don't ever know half of the story until I've done research, and even then I figure I only know two-thirds. Still, this was a bit of a shock:

One reason the claims were dismissed was that the judge observed that the plaintiffs were trying to win the prize for "funniest float." Why is that relevant? Because, on more than one occasion, people had "won in the past with other ethnicity-parodying floats."

In other words, the noble people of Broad Channel were not some enlightened crowd, shocked by the horrible actions of these rouges. They often awarded the prize to floats that ridiculed ethnic groups - just not that particular ethnic group.

So, I guess we can lament on behalf of the people of Broad Channel, If only the float had mocked women, or Muslims, or gays. Now THAT would have been prize-winning funny, right?

Jimpy wrote:
The judge went on to lambaste the concept as pertains to both the potential "riot" and the potential "loss of effectiveness:"

The loss of effectiveness in question is for the department overall. I can understand why the judge might call that too vague, too minimal to outweigh their rights. I argue, and the city should have argued, that the individual officers involved can not command respect or authority or even likebility (is that a word?) having being branded "racist". The city would have to convince the court that they were so branded (maybe they weren't, maybe they just really really wanted to win. Good luck getting a jury or a local judge to believe that one). Having lost that ability, they, and only they, could not be put in dangerous situations were race may be a factor, which in New York, it always is. Not happy about it, but it always is. And it can always become life and death.

Patrick:
I think what you propose would be a dangerous precedent for two reasons.

1) From the point of view of the city: If the city could convince a judge that the plaintiffs should have been fired because their effectiveness declined as a result of being branded racist, the plaintiffs could probably sue the city for having branded them racist.

2) A successful defense on those grounds would implicitly do things like retroactively validate the Hollywood blacklist. In the current climate, it could: allow the military to boot gays not because they are gay but because they are not as effective because people think they are gay; open the door to teachers being fired because their appearance of communist leanings diminished their effectiveness; and permit my company to fire me because I was branded a traitor for wearing my France national soccer team jersey to work at the height of the ongoing francophobia.

No thanks.

Since New York is an at-will employment state, I think the city would have been better off saying that they were fired for no reason at all.

To point 1) the city's defense is the that is the truth. A reasonable person would call them racist. Many newspapers are calling them racist and I do not think they are worried about lawsuits. If they they could prevent anyone from proving they are racist, please let them and we can drop the whole thing. As it is, I don't think they can.

2) Assuming they are racist, that is different than being gay, a communist, or pro-French in this case. Not to be a broken record, but to be an effective cop or fireman you have to be very fair and appear to be fair. Reason dictates that a racist will consciously or subconsciously not be fair. A gay person should only be fired if his job involved seducing, having sex with, and forming long term relationships with women. A Communist should be fired if their job is to promote capitalism, and a Francophile should not be allowed to get a job that involved hating or undermining France. Would you hire person who was a capitalist gay bashing francophobe to sell (at cost) copies of The Complete Works of Marx in the gay section of Paris? Imagine if not only did you hire said person, but then you gave them a gun!

Patrick:
Would that I were never in the position to have to make the decision, but I would like to think that I would indeed hire a person of your portmanteau description to sell Marx in one of the heavily gay neighborhoods in Paris. But not if he were good looking (and gun control is stricter in France). :-)

On "Law and Order" they would say you had "reckless indifference to human life" and throw the book at you based on the Palsgraff decision of foreseeability.