Victory in Sal Davi’s Free Speech Case

On March 3, U.S. District Judge Edward R. Korman ruled that the New York Office of Temporary and Disability Assistance (OTDA) violated Sal Davi’s right to free speech when officers demoted him over comments he made in a private Facebook conversation.  Davi had criticized current welfare programs for encouraging dependence rather than helping people become self-sufficient, and officers at the OTDA alleged that his comments demonstrated bias against welfare recipients. 

CIR sued the OTDA on behalf of Davi arguing that the agency had punished him purely for the content of his speech.  Davi had worked for the OTDA as administrative law judge for five years — hearing appeals from welfare recipients who had been denied benefits.  During that time Davi’s supervisors praised his work, noting in particular his “unbiased approach to his job.” 

The court ruled in favor of Davi, finding that his comments were “political speech about the proper role of government” and thus “among the most highly protected speech in our constitutional order.”  Moreover, the OTDA lacked evidence that Davi’s comments showed any actual bias or were likely to cause a disruption to the offices work, which suggested “[the officers] sought to fire Davi because he held disfavored views.”  The court ordered Davi’s superiors to reinstate him as an ALJ.  

In a rare decision, the court ruled that several officials face personal liability for their actions against Davi.  Ordinarily, state officials are shielded from personal liability for constitutional deprivations by the doctrine of “qualified immunity.”  But the doctrine does not apply to actions that show deliberate indifference to clear constitutional violations.  In this case, officers ignored their own, thorough investigation, which produced no evidence of wrongdoing, bias, or disruption, by Davi. Yet they attempted to fire him anyway.