Second Circuit Hears Oral Argument in Decade-Long First Amendment Case Over Private Political Speech 

Today, the U.S. Court of Appeals for the Second Circuit heard oral argument for a second time in Davi v. Spitzberg, a First Amendment case challenging New York State’s punishment of a civil servant for political views expressed in a private Facebook discussion. 

For years, Salvatore Davi served as a hearing officer deciding appeals in New York’s public assistance system. That career was derailed after an anonymous complaint was filed over a private Facebook discussion he joined in 2015. The discipline came despite the absence of any complaints from applicants, any rehearing requests, or any evidence that his speech affected agency operations.  

“This case has now been to the Second Circuit twice, and it is still about the same thing it was ten years ago: whether the government can punish an employee for expressing a common political view outside of work,” said Michael Rosman, Executive Legal Counsel at the Center for Individual Rights. “After a decade of litigation, the state still cannot point to a single instance of bias, disruption, or harm.” 

The case has followed a long and winding path through the courts. A federal judge twice ruled in Davi’s favor, finding that the state agency violated Davi’s First Amendment rights. The Second Circuit vacated and remanded the first decision for further consideration. After addressing those issues on remand, the district court again ruled for Davi, finding that the agency failed to show any legitimate justification for the discipline imposed. 

The appeal now before the Second Circuit asks whether a government employer may rely on speculative predictions of disruption to punish a public employee for speech on a matter of public concern. 

Rosman added, “If the government can sideline a civil servant for voicing an opinion on public policy, it sends a clear message to public employees nationwide: stay silent, or risk your career. The Constitution does not permit that.” 

A decision from the Second Circuit is expected at a later date.