It's Not a Bird Or a Plane--But It Does Present an Issue of Fact
Possible Shift in Focus For Sui Generis

These Guys Don't Deserve the Title "NY's Finest"

The decision of the day blog summarized an interesting 2d Circuit decision, Locurto v. Giuliani, 04-6480 (2nd Cir., Apr. 27, 2006), which was aptly described as a "high profile First Amendment case(that)  pits the rights of New York policemen and firefighters to be complete jackasses against the City’s right to fire them."

In this case, the plaintiffs, a police officer and two firemen, participated in a Labor Day parade float that mocked African Americans.  Their despicable behavior was described in the decision:

For the September 7, 1998 Labor Day parade, the group, which included the plaintiffs, decided to enter a float called “Black to the Future – Broad Channel 2098.” The conceit, a play on the 1985 time-travel film Back to the Future, was to depict how Broad Channel would look in 2098 when, presumably, the community would be more integrated than it was in 1998. Each of the float participants, including the plaintiffs, covered their faces in black lipstick, donned Afro wigs... The float itself featured two buckets of Kentucky Fried Chicken on the hood of a flatbed truck. One of the participants (not a plaintiff in this case) ate a watermelon and at one point threw the remains into the crowd...Plaintiffs Steiner and Walters yelled to the crowd, “Crackers, we’re moving in,” andWalters simulated “break dancing” alongside the float.

Near the end of the procession, and apparently without the others’ knowledge, Walters held onto the truck’s tailgate, pretending to be dragged by the truck, and yelled, “Look what they did to our brother in Texas, we would not allow them here . . . .” The scene was intended to invoke and parodically recreate the dragging death of James Byrd, Jr., an African-American man who had been murdered months earlier outside of Jasper, Texas after being chained to the back of a moving pickup truck by three white men. After the media aired footage of the float, the plaintiffs lost their jobs and subsequently sued the City for terminating them in violation of their First Amendment rights.

The decision of the day blog provides an in depth analysis of the issues presented, and I recommend that you give the post a read.  But, for those of you who just have to know how it all turns out: 

(T)he Court concludes that the City’s interests outweigh the plaintiffs’ "not insubstantial" right to be jackasses. Thus, the Court decides that the defendants are entitled to summary judgment.

In my opinion, justice was well served.  These guys didn't deserve a dime.


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The N.Y.P.D.s real and substantial interest in its public image is insufficient to justify a crackdown on unpopular, even hateful, opinions. However, I think that you could make a legitimate argument that the conduct raised the question whether these guys were fit for the job.
A non-hate example would be the paralegal an IP firm fired for expressing anti-IP positions.

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