Private Speech, Public Punishment

Second Appeal in Davi v. Spitzberg

New York’s welfare agency punished Salvatore Davi for a private Facebook post. After more than a decade of stellar service, Sal was suspended for six months and barred from presiding as a hearing officer for expressing his views about welfare policies in a private, online chat.

Because government employees don’t forfeit their First Amendment rights to speak about public issues, we sued to vindicate Sal’s rights. On February 4, CIR defended our trial court victory—for a second time—in the U.S. Second Circuit Court of Appeals.

Sal’s record as a hearing officer was impeccable. He heard appeals from denials of welfare benefits, and his performance reviews consistently recognized his impartial decisions and respectful treatment of those who appeared before him—including ruling in favor of the welfare applicant in 95% of cases.

The controversy began after Sal engaged in a private Facebook debate with a former law school classmate about welfare reform. Sal wrote that a welfare program’s success should not be measured by how many people receive benefits, but by how many reenter the workforce. He also worried that existing policies might foster long-term dependence.

Sal’s former classmate forwarded screenshots to the welfare agency, triggering a cursory investigation that led to Sal’s suspension. Despite his exemplary record, agency officials concluded that his comments could disrupt agency operations and punished him.

CIR took up Sal’s cause in 2016 and defended his First Amendment rights through nearly a decade of litigation. The federal trial judge ruled twice in Sal’s favor. This second appeal could reinforce that victory with a precedent-setting opinion.

The appellate judges focused on the likely impact of Sal’s private speech. A public employer may discipline private speech only if it shows that disruption is likely, not merely possible. That requires evidence, not conjecture. Even if the government does establish a serious threat of disruption, it must still show that its interests outweigh the employee’s freedom to speak on matters of public concern.

So, what was the agency’s evidence?

CIR’s Michael Rosman argued that the agency had no reasonable grounds to fear disruption. Months passed after Sal’s private Facebook post without complaint. No welfare recipient objected. No party sought his recusal. There was no loss of efficiency or administrative problems. The agency even admitted Sal’s work showed no bias. That’s why the district court twice ruled in Sal’s favor.

The agency’s justification rested on mere speculation about what might happen in the future. The First Amendment does not permit the government to silence political speech based on speculation untethered to evidence. Otherwise, any supposedly “controversial” viewpoint could justify punishment. And people with government expertise would be the most at risk of being silenced.

Few individuals would endure such a long battle to vindicate a constitutional principle. Yet Sal has persevered. CIR is proud to stand with such a hero—not only to protect his rights, but to strengthen a vital constitutional safeguard for all Americans.