Las Vegas POA

Constitution Protects Against ‘Compelled Speech’

Written on 04/30/2021
Will Aitchison

Michael Gala is a Deputy Assistant Chief with the Fire Department of New York (FDNY). On May 18, 2020, Gala met with Chief of Department John Sudnik and Chief of Fire Operations Thomas Richardson and was informed that he would be promoted to Assistant Chief of Department on May 23. However, Chief Sudnik explained that the Fire Commissioner wanted Gala to send an email, recanting opinions that he had expressed in the Letters to the Editor section of the newspaper The Chief-Leader over ten years earlier. Chief Sudnik said the retraction should say Gala is “not the same man” as he was when he wrote the letters.

Gala declined to send the retraction email. When the list of FDNY promotions was announced a few days later, Gala’s name was missing. Chief Sudnik informed Gala that the Commissioner reversed the promotion decision because of Gala’s refusal to recant the statements in the letters.

Gala had written the letters concerning hiring standards in the FDNY, including the FDNY’s entrance exam, an issue that was litigated against the City throughout the 2000s and 2010s. In the letters, written in 2007 and 2008, Gala criticized certain proposals for diversifying hiring at the FDNY, stating that “candidates of any race and gender must seek out the job of FDNY firefighter the old-fashioned way, by earning it,” that “the frenzy to diversify this department (and only this department) at any cost will lead to its future ruination,” that he has “spoken out in this paper about the merit system and has been called both a bigot and a racist for expressing those opinions,” and expressing frustration with “black and female firefighters who have earned their positions in this department or who have risen through the ranks on their own merits and then later condemn the same system that facilitated that rise.”

Gala believed that his letters were motivated by his concern about the relaxation of rigorous and objective testing requirements and were “written with the characteristic bluntness of a first responder,” and “echoed the official positions of the City and the FDNY at the time.” However, in 2010, a court found that the entrance exams administered by the FDNY had an unlawful discriminatory impact on minority applicants. A court-appointed special master oversaw the overhaul of the FDNY’s hiring process. Gala assisted that process, which produced a revamped entrance exam designed to address disparate impact concerns.

Gala was commended by the special master for his efforts. She reported to the Court that Gala’s efforts in distributing a letter encouraging cooperation in a criterion study were “very important to the success of the study” and noted his overall assistance in scheduling and coordinating the test administration sessions. The letters predated the court-ordered overhaul of the entrance exam.

Gala sued the Department, contending (among other things) that the retraction email was “compelled speech” prohibited by the First Amendment. FDNY filed a motion to dismiss the lawsuit, arguing that it was lawful for the Commissioner to require Gala to disavow his views while under consideration for a high-ranking position in the FDNY.

A federal court refused to dismiss the lawsuit. The Court commented that “I view this case as being more about retaliation for failure to engage in compelled speech than for past speech. Gala was promoted multiple times after he authored the original letters, and it was only after he refused to retract those letters – that is, that he refused to speak – that he suffered an adverse employment action. The First Amendment protects a citizen’s decision both as to what to say and what not to say. FDNY concedes that Gala was considered for a promotion, asked to recant his previous statement, and then not promoted after he refused to do so. Accordingly, Gala has satisfied his initial burden of demonstrating that the speech at issue regarded a matter of public concern and that he suffered an adverse employment action plausibly as a result of his refusal to issue a retraction.

“FDNY argues that the letters caused an intolerable disruption to the FDNY’s operations. However, there is no reason to presume that Gala’s refusal to retract that speech all these years later would cause one now. And to the extent that the Commissioner’s goal for the retraction was to improve public relations, the law does not generally permit the public to curtail unpopular ideas with the government’s help. In any event, it may be difficult for defendants to establish that the Commissioner reasonably believed the retraction would eliminate any potential disruption; an email paying lip service to diverse hiring efforts may be a shallow and ineffective means of improving public relations on a complex issue with which the FDNY (and many other institutions) have grappled for years.”

Gala v. City of New York, 2021 WL 930252 (E.D.N.Y. 2021).

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