Posted by Dennis Herrick on August 07, 2008 at 06:48:36:
In Reply to: Haverhill's Watergate With Plumbers And Dirty Tricks posted by Dennis Herrick on August 03, 2008 at 16:16:26:
One of the more interesting responses to the article in the previous post. God may or may not be dead, but he's alive and well in your local city and town hall. No wonder Plaistow's Former Town Manager and Pastor of the Meaderboro Church, John Scruton, finds in so easy to slip in and out of his clergy and municipal garb. He doesn't have to they're one in the same.
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Publius
Councilor Donahue has done nothing but engage in lawful speech. As a result, the City Council has no legal right to censure him. This would be a violation of the First Amendment. Remember, what the Eagle Tribune did was ethically wrong, not legally wrong. A private entity cannot violate a party's First Amendment Rights, only the government can do that, as the Constitution is a contact between the People and the Government which limits the involvement of government in our lives.
The First Amendment provides a great deal of protection for people speaking out on matters of public concern. In this case, there is no question that the Blog postings of Councilor Donahue were of matters of a public concern/interest; nor is there a question that they were critical of the government. All of which are forms of protected speech.
Councilor Donahue is a government employee; a Haverhill City Councilor. Case law has established that when a government employee speaks on matters of public interest, the First Amendment offers protection where the speech survives a screening test which has become known as the "Pickering Balance". This is named after the Pickering case which requires you to balance the Rights of the employee in commenting upon matters of public concern and the interest of the government as an employer in promoting the efficiency of government. In this case, Councilor Donahue's comments do not negatively affect the efficiency or operation of government; but rather, offer an opposing viewpoint, constructive criticism, and a touch of political satire. All of which are protected forms speech. As previously stated politics is a contact sport.
It is clear that public employees do not surrender all of their First Amendment Rights by reason of their employment or office. The First Amendment limits the ability of a public employer, or body, to punish, or leverage the employment relationship to restrict, incidentally or intentionally, the liberties employees enjoy in their capacities as private citizens. Therefore, the Haverhill City Council will be acting unlawfully if they act to censure Councilor Donahue. The First Amendment recognizes the importance of promoting the public's interest in receiving well-informed reviews of government employees engaged in civic discussion. It is also acknowledged that government employees are the members of the community most likely to have informed and definite opinions about governmental affairs. If public employees, or a City Councilor in this matter, were not permitted to speak out on the operations of government, the community would be deprived of informed opinions on important public issues.
Conclusively, the balancing test is to promote the individual and societal interests that are served when employees speak on matters of public concern. In this case, it has been issues such as drinking water from the Merrimac River, Councilor Macek putting political self-interests above that of the City of which he serves, and commentary that promotes the non-reelection of Mary Ellen Daly O'Brien. These are all matters of public interest and concern.
The First Amendment has a history of protecting speech that may be critical of the government, may be controversial, may raise conflict, or may be offensive to some. The Right of the People to engage in lawful speech is something the government has no right to interfere with. As a result, the Haverhill City Council needs to re-think its position when it considers taking action against Councilor Donahue. They must act with restraint and not allow themselves to fall victim to violating such a sacred Right as the Freedom Speech.