SOTOMAYOR, Circuit Judge, dissenting: No. 00-9487

Today the Court enters uncharted territory in our First Amendment jurisprudence.

The Court holds that the government does not violate the First Amendment when it fires a police department employee for racially inflammatory speech — where the speech consists of mailings in which the employee did not identify himself, let alone connect himself to the police department; where the speech occurred away from the office and on the employee's own time; where the employee's position involved no policymaking authority or public contact; where there is virtually no evidence of workplace disruption resulting directly from the speech; and where it ultimately required the investigatory resources of two police departments to bring the speech to the attention of the community. Precedent requires us to consider these factors as we apply the Pickering balancing test, and each counsels against granting summary judgment in favor of the police department employer. To be sure, I find the speech in this case patently offensive, hateful, and insulting. The Court should not, however, gloss over three decades of jurisprudence and the centrality of First Amendment freedoms in our lives because it is confronted with speech it does not like and because a government employer fears a potential public response that it alone precipitated.

I. Public Concern As a threshold matter, the majority is correct to assume that the materials at issue in this case constitute speech on a matter of public concern. Issues of race relations are "inherently of public concern." Connick v. Myers, 461 U.S. 138, 148 n.8 (1983); see also Perry v. McGinnis, 209 F.3d 597, 608 (6th Cir. 2000) ("In Connick . . . the Supreme Court clearly established that racial discrimination is inherently a matter of public concern."). And while we are more comfortable when the speech we are protecting involves protestations against racial discrimination, it is not our role to approve or disapprove of the viewpoint advanced.

In Jeffries v. Harleston, 21 F.3d 1238, 1242 (2d Cir.), vacated on other grounds, 513 U.S. 996 (1994), we were confronted with racial remarks that were "hateful," "repugnant,"

and clearly inflammatory. The public employee in Jeffries had asserted, among other things, that "'rich Jews' had financed the slave trade" and that Jews had conspired with Mafia figures in Hollywood for the "'destruction of black people.'" Id. at 1242. We found that the comments "unquestionably involved public issues" and were entitled to First Amendment protection. Id. at 1245. Pappas's statements in this case about "how the Jews control the TV networks and why they should be in the hands of the American public and not the Jews" are similarly public in nature. As we recognized in Jeffries, "First Amendment protection does not hinge on the palatability of the presentation; it extends to all speech on public matters, no matter how vulgar or misguided." 21 F.3d at 1245-46.1 While the forum in which Pappas expressed his views was less public than in Jeffries — which involved a speech at a festival — that fact does not deprive Pappas's speech of constitutional protection. The Supreme Court addressed this precise issue in Givhan v. Western Line Consolidated School District, squarely rejecting the notion "that a public employee forfeits his protection against governmental abridgment of freedom of speech if he decides to express his views privately rather than publicly." 439 U.S. 410, 414 (1979). None of the cases cited by Judge McMahon's concurrence are to the contrary, as they involved employees speaking about issues concerning their own employment.2 This case involves the categorically different scenario of an employee speaking on issues of race relations entirely unrelated to his job.

II. Pickering Balancing Test Proceeding to the Pickering balancing test, the majority finds that the NYPD's interest in fulfilling its mission outweighs Pappas's First Amendment rights under the circumstances of this case. I disagree. I of course do not dispute the majority's premise that a public employee's free speech interest is often subordinated to the effective functioning of a government employer. I also agree that it is appropriate to consider the agency's mission in relation to the nature of the speech, and I appreciate the enormous importance of race relations to the operation of the NYPD. These facts alone, however, do not support the constitutionality of the NYPD's termination of Pappas. The well-established caselaw of the Supreme Court and this Court requires a more searching inquiry.

A court must consider not only the agency's mission in relation to the nature of the speech, but also the employee's responsibilities in relation to that mission. We are not free to disregard this part of the analysis. The Supreme Court has instructed that "in weighing the State's interest in discharging an employee based on any claim that the content of a statement made by the employee somehow undermines the mission of the public employer, some attention must be paid to the responsibilities of the employee within the agency." Rankin v. McPherson, 483 U.S. 378, 390 (1987) (emphasis added); see also McEvoy v. Spencer, 124 F.3d 92, 102-03

(2d Cir. 1997) (emphasizing this aspect of Rankin). As this Court has explained, "the more the employee's job requires confidentiality, policymaking, or public contact, the greater the state's interest in firing her for expression that offends her employer." McEvoy, 124 F.3d at 103

(quotation marks omitted) (citing Caruso v. DeLuca, 81 F.3d 666, 670 n. 3 (7th Cir. 1996); Hall v. Ford, 856 F.2d 255, 261-64 (D.C. Cir. 1988)). The importance of these factors, we have explained, "should not be surprising." Id. "Common sense tells us that the expressive activities of a highly placed supervisory, confidential, policymaking, or advisory employee will be more disruptive to the operation of the workplace than similar activity by a low level employee with little authority or discretion." Id. (citing Bates v. Hunt, 3 F.3d 374, 378 (11th Cir. 1993); Kinsey v. Salado Indep. Sch. Dist., 950 F.2d 988, 994 (5th Cir. 1992)).

We apply this factor in the law enforcement context by asking whether Pappas held some high-level, "supervisory," "confidential," or "policymaking" role within the police department. If, for example, the Police Commissioner or one of his deputies engaged in racist speech, the mission of the NYPD could be seriously undermined and the city's interest in dismissing him would be compelling. We must also ask whether Pappas's role with the NYPD involved "public contact." A police officer walking the beat, while not exercising broad policymaking authority, is often the representative with whom the public interacts. It is not difficult to see how such an officer who expresses racist views in certain situations could damage the efficient operation of the NYPD. This goes to the heart of the majority's reasoning. The majority explains that, in a city like New York, it is the perceived bias among the police department's rank and file that causes the most problems. Ante, at [12]. The truth of this assertion is undeniable, but varies greatly depending on which police employees are involved.

This is why the Supreme Court and this Court scrutinize the individual employee's responsibilities with such care. In Rankin, the Supreme Court applied this analysis to the law enforcement context and found that "where . . . an employee serves no confidential, policymaking, or public contact role, the danger to the agency's successful functioning from that employee's private speech is minimal." Rankin, 483 U.S. at 390-91. Examples mentioned by the Court of police employees whose speech would likely implicate this "minimal" governmental interest included "computer operator, electrician, [and] file clerk." Id. at 391. Turning to the instant case, it is clear that Pappas's position with the NYPD involved neither the policymaking authority of an executive official nor the public contact of a street cop. He was an internal "computer operator" working for the Management Information Systems Division. Pappas v.

Giuliani, 118 F. Supp. 2d 433, 435 (S.D.N.Y. 2000). While this fact is "not conclusive," our precedents deem it a "very significant" weight on the scales in Pappas's favor as we conduct the Pickering balancing test. McEvoy, 124 F.3d at 103.

The majority further explains that for a police officer to disseminate racist materials tends to promote the view that New York police officers are racists. According to the Court, "[t]he capacity of such statements to damage the effectiveness of the police department in the community is immense." Ante, at [8]. Here again, the majority's observation has an element of undeniable truth but requires refinement. At some level of abstraction or aggregation, the potential for racist statements to damage the NYPD may indeed be "immense." But that is not how the fact-specific Pickering test is applied. The question is how potentially damaging is this speech — that is, these leaflets sent by this employee under these particular circumstances. We have stated unambiguously that, in conducting the balancing test, "a court must consider whether the statement sought to be protected 'impairs discipline by superiors or harmony among co-workers, has a detrimental impact on close working relationships . . . or impedes the performance of the speaker's duties or interferes with the regular operation of the enterprise.'"

Lewis v. Cowen, 165 F.3d 154, 162 (2d Cir. 1999) (quoting Rankin, 483 U.S. at 388, and citing Connick, 461 U.S. at 151-52) (emphasis added). To conduct this analysis, we look at the "'manner, time, and place' in which the speech occurs." Id. (citing Connick, 461 U.S. at 152). In this case, Pappas engaged in the speech anonymously, on his own time, and through mailings sent from his home. I address these factors in turn.

It is significant that Pappas did not purport to speak for the NYPD. We recently explained that the central reason why "[public employees'] free speech claims are subject to the Pickering balancing test" is "the state's significant interest in regulating the expressive conduct of its employees while they are acting on behalf of the state." Knight v. Conn. Dep't of Pub.

Health, 275 F.3d 156, 167 (2d Cir. 2001). This fact alone does not deprive the government of its legitimate interest in the matter, but its interest is higher with respect to "employees who purport to speak for the government." Moore v. City of Wynnewood, 57 F.3d 924, 933 (10th Cir. 1995).

The significance of this factor depends upon the presence of another factor, already discussed, regarding the responsibilities of the employee. For example, the fact that the Police Commissioner did not purport to represent the NYPD when making a racist statement would mean little. Where, as here, the employee has no such authority or public contact, this aspect is significant. Moreover, the facts of this case are particularly compelling in this regard: Not only did Pappas fail to connect himself to the NYPD, his mailings were entirely anonymous, making it considerably less likely that the effect of the speech on the NYPD's operations would be "immense."

It is also significant that the speech occurred away from the office on the employee's own time. In Connick, the speech at issue was a workplace questionnaire that "touched upon matters of public concern in only a most limited sense" and would be "most accurately characterized as an employee grievance concerning internal office policy." Connick, 461 U.S. at 154. Finding the First Amendment concerns virtually non-existent and the countervailing interests compelling, the Supreme Court ruled in the government's favor. Id.

Notwithstanding the relatively minimal free speech interests at stake, the Court nonetheless cautioned that "[e]mployee speech which transpires entirely on the employee's own time, and in non-work areas of the office, bring different factors into the Pickering calculus, and might lead to a different conclusion." Id. at 153 n.13. We adopted this dictum in Lewis. 165 F.3d at 162

(stating that "the Pickering balance is more likely to favor the government when an employee directly confronts his supervisor with objectionable language than when an employee engages in equivalent speech on his own time and not in front of co-workers") (citing Connick, 461 U.S. at 152-53 & n.13). The fact that speech takes place in private and away from the workplace favors the employee on both sides of the balancing test: First, it reduces the likelihood of disruption.

See Lewis, 165 F.3d at 162. Second, it enhances the free speech interests at stake because the employee is speaking in his capacity "as the member of the general public he seeks to be."

Pickering v. Board of Educ., 391 U.S. 563, 574 (1968). In the instant case, Pappas's speech was as far removed from the workplace as possible. He acted as a private citizen, off-duty, anonymously sending mailings from his own home on matters of public concern unrelated to his job as a computer operator for the NYPD. Moreover, the speech in this case implicates matters of public concern far more than did the employee questionnaire in Connick, see supra Part I, tipping the scales further in Pappas's favor. See Lewis, 165 F.3d at 162 ("The more the employee's speech touches on matters of significant public concern, the greater the level of disruption to the government that must be shown.") (citations omitted).

The majority nonetheless maintains that Pappas "deliberately sought to publicize his views," and that "[a]lthough Pappas tried to conceal his identity as speaker, he took the risk that the effort would fail." Ante, at [8-9]. Ultimately, the governmental interest that the majority seeks to protect in this case is publicity. The majority's core concern seems to be that, even though Pappas was a low-level employee with no public contact who was speaking privately and anonymously, the possibility remained that the news would get "out into the world" that the NYPD was employing a racist. I agree this is a significant issue, and I do not take it lightly. This Court has made clear that negative publicity affecting the community's faith in government can be a significant factor in the Pickering balancing test. See Lewis, 165 F.3d at 164-65. And as the majority points out, news of Pappas's speech did in fact reach the local media. This issue, however, requires closer scrutiny.

This case differs from others we have confronted in a critical respect. In the typical public employee speech case where negative publicity is at issue, the government has reacted to speech — which others have publicized — in an effort to diffuse some potential disruption. In this case, whatever disruption occurred was the result of the police department's decision to publicize the results of its investigation, which revealed the source of the anonymous mailings. It was, apparently, the NYPD itself that disclosed this information to the media and the public. Thus it is not empty rhetoric when Pappas argues that he was terminated because of his opinions. Ante, at [8]. The majority's decision allows a government employer to launch an investigation, ferret out an employee's views anonymously expressed away from the workplace and unrelated to the employee's job, bring the speech to the attention of the media and the community, hold a public disciplinary hearing, and then terminate the employee because, at that point, the government "reasonably believed that the speech would potentially . . . disrupt the government's activities." Heil v. Santoro, 147 F.3d 103, 109 (2d Cir. 1998). This is a perversion of our "reasonable belief" standard, and does not give due respect to the First Amendment interests at stake.

CONCLUSION I recognize that the Pickering test affords substantial deference to government employers, particularly in the law enforcement context. The NYPD's concerns about race relations in the community are especially poignant. But there are limits. "At some point, such concerns are so removed from the effective functioning of the public employer that they cannot prevail over the free speech rights of the public employee." Rankin, 483 U.S. at 391. The question is on what side of the line does this case fall. By finding that there is no issue of material fact for trial, the majority lays down too broad a rule regarding the government's ability to disqualify an individual from public employment based on the expression of an unpopular viewpoint. While I agree with the majority that no one factor in the Pickering test deserves "talismanic or determinative significance," a full application of this multi-factor test to the unique circumstances of this case indicates that summary judgment was inappropriate. I respectfully dissent.

[1]-. More recently, this Court strongly implied that racial speech, even more purely inflammatory than the speech in Jeffries or the instant case, is of "public concern." In Locurto v.

Safir, 264 F.3d 154 (2d Cir. 2001), members of the New York City Police Department and Fire Department were fired after participating in the presentation of a racist, deeply offensive float at a Labor Day parade in Broad Channel, Queens. The float, entitled "Black to the Future,"

ridiculed African Americans while referring to the future effects of racial integration in their community. The offensive aspects included the participants' wearing blackface, eating watermelon, and worse. See id. at 159. This Court proceeded with its analysis on the assumption that the speech was of public concern, noting that the defendant employers "do not strenuously dispute" that the activity "constituted First Amendment speech on a matter of public concern." Id. at 166.

[2]-. Moreover, Judge McMahon's reliance on Kurtz v. Vickrey, 885 F.2d 723 (11th Cir.

1988), for the proposition that public concern value is diminished where an employee "took no affirmative steps . . . to inform the public at large about[] the problems with which he was so gravely concerned" is misplaced. Judge McMahon neglects to mention that the Kurtz court strongly cautioned against placing dispositive weight on this factor because "such a focus overlooks the Court's holding in Givhan . . . that a public employee's freedom of speech is not sacrificed merely because the employee 'arranges to communicate privately with his employer rather than to spread his views before the public.'" Id. at 727 (quoting Givhan, 439 U.S. at 415-

16). Furthermore, the Kurtz court found this factor important only with respect to matters that were distinctly employment-related, such as the handling of salary issues at the university where the plaintiff was employed. See id. at 728-29. With respect to matters of more public interest, such as the closing of a branch of the university, the court found that the speech was of public concern and therefore protected — notwithstanding the private context of the communication.

See id. at 729-30.