Salvatore Davi’s Free Speech Vindicated Again!

On May 29, Salvatore Davi prevailed in District Court in his free speech challenge against his New York state agency employer… for the second time. Davi was suspended from his position as a hearing officer at New York’s Office of Temporary and Disability Assistance after his superiors received an anonymous report that he had a heated Facebook exchange with a former classmate about how best to measure the success of welfare programs. The agency removed Davi in his role as a hearing officer, claiming that someone with his views would be seen as biased against the welfare recipients appearing before him to appeal their denials of welfare benefits (contrary to all evidence, which showed that Davi had reversed most denials).

Judge Edward Korman recognized that the agency had punished Davi because of his speech. In 2021, he ordered the agency to reinstate Davi and refused to dismiss individual claims against several officials for their blatantly unconstitutional action. But on appeal, the Second Circuit decided that Judge Korman had not taken a close enough look at the agency’s argument that Davi’s presence would disrupt the functioning of the office. It remanded the case to the District Court.

On remand, Judge Korman once again vindicated Davi, recognizing that the government had no evidence that Davi’s speech would cause a disruption. On the contrary, in the months after Davi was removed from hearing cases, there was not one instance of a request or motion to reverse any decision because of the “bias” allegedly shown by the Facebook posts. Accordingly, the government did not have an adequate interest to justify punishing Davi for the content of its speech.

This is now the second time that the court has repudiated New York for its actions. Hopefully, the lesson will stick this time.