Mimesis Law
19 February 2017

Did Bigot Deputy David White Deserve His Punishment?

Feb. 10, 2017 (Fault Lines) – David White, a deputy employed by the Boyd County, KY Sheriff, had a Facebook page where he allegedly (update: it’s true) liked to post derogatory things about Obama and Muslims. That recently got him into hot water. On February 7, a number of news sites reported that White had been suspended for 24 days after a post of his went viral.

Here it is in all its idiotic glory:

According to the reports already out there, Boyd County Sheriff Bobby Jack Woods suspended White after someone took a screenshot of the Facebook post and shared it with the sheriff’s office. What’s more, Sheriff Woods is supposed to have released a statement confirming the authenticity of the post and justifying suspending White as the “maximum disciplinary action allowed by policy.”

First, the boring responsible-journalism stuff. As everyone knows, fake news has been a bit of a problem lately, and verifying any of what the media said has been surprisingly tricky. If Sheriff Woods put out a press release, it’s not on the department’s website or Facebook page. There’s also no information about departmental policy or the “disciplinary action” it allows.

Kentucky has a LEOBOR, but it doesn’t limit the length of suspensions or the discipline sheriffs can impose. And if the sheriff’s office is constrained by a collective bargaining agreement, there’s no trace of it on the internet. I’ve reached out to Sheriff Woods and his representatives, requesting clarification, but received no reply.

While it’s tempting to conclude the story’s a hoax, there’s some pretty compelling evidence that the allegations about White are true. His Facebook account is long gone, but on Wednesday night, a bunch of irate netizens were leaving comments demanding he be fired on the Boyd County Sheriff’s Facebook page. Some of what they posted included screenshots of White’s social media activity.

The sheriff’s office has been deleting the screenshots, so there aren’t any current links, but what was there on Wednesday included an unredacted version of the “MUSLIM HOLLER MONKEY” post and a pic showing White posting a charming meme about Muslims, sexual intercourse with pigs and a really terrible song by KC and the Sunshine Band.

Let’s assume White posted all this crap. Does that make him “racist,” like people have been saying? Well, no. “Holler monkey” looks racist, but if you look it up, it turns out to be Kentucky slang for a boorish, classless person. Definitions matter, and the last thing America needs in the age of Trump is another repeat of the “niggardly” debacle.

Sadly, not even the “MUSLIM” or “SHEMALE” things are all that unusual by themselves. The belief that Obama is a secret Muslim is one our current President defended for years and only repudiated in September. And as the confirmations of Jeff Sessions and Betsy DeVos proved, simpleminded attacks on public figures’ appearances are common across the political spectrum.

But taken together – and especially with the meme to provide context – it’s clear that White, if he wrote the anti-Obama post, is a bigoted, obtuse kinda guy. And that’s problematic, especially in a cop. Just as you wouldn’t want to appear, as a black defendant, before a judge who calls African-Americans “fat n*ggers,” so too wouldn’t you want to fall into Deputy White’s clutches as a Muslim.

But was Sheriff Woods right to discipline him? Should he have been fired instead, like the internet demanded? Maybe not. After all, White may be a police officer, and contemptible, but he still has First Amendment rights.

As Fault Lines contributor Ken White[1] shows in a series of lovingly crafted lawsplainers, SCOTUS has repeatedly held that the government can’t discipline or discharge people over protected speech for any reason whatsoever. That wasn’t always the prevailing point of view: in 1892, Justice Holmes, then on the Massachusetts Supreme Court, held in McAuliffe v. Mayor & Aldermen of New Bedford that “[t]he petitioner [a cop] may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.”

In the latter half of the 20th century, SCOTUS hammered out a series of cases establishing that people in their capacity as public employees have free speech rights – though they’re not as extensive as those that normally apply – and that the government can’t impose professional consequences where those rights are implicated without sufficient cause. The two cases that’ll help us find out whether Woods wronged White are Pickering v. Board of Education (1968) and Connick v. Myers (1983). Taken together, they give us the “Pickering-Connick test.”

The Connick prong of the test provides that for the employee’s speech to be protected, it has to be on a matter of public interest, as determined by the “content, form, and context” of what was said. The Pickering prong is a rare example of a genuine constitutional balancing test: if the employee’s speech is found to be protected, the court engages in what Ken describes as an “alarmingly touchy-feely” weighing of the employer’s interest in an orderly and efficient workplace against the employee’s First Amendment rights. This involves a dizzying array of factors, including:

whether the speech restriction is content-based (that is, whether it censors some viewpoints but not others), the circumstances of the speech, the strength of the employee’s interest in the speech, whether the speech genuinely disrupts discipline and order and interferes with relationships, and so on.

If White’s Facebook post fails either prong, Sheriff Woods gets away with putting him on his ass for three and a half weeks. There’s little doubt that what White said was on a matter of public interest. As Ken pointed out in an email, the post, in context, is about presidential politics and transition. What’s more, the courts have construed the public-interest requirement broadly. In Gillette v. Delmore (1989), the Ninth Circuit held that “[s]peech that can fairly be considered as relating to any matter of political, social, or other concern to the community is constitutionally protected.”

So what about the balancing test? Sadly, there have been more than a few First Amendment challenges by cops who were fired for racist or otherwise bigoted speech. As a result, a number of courts have given the government considerable leeway to discipline its employees for that kind of thing. For instance, in Pappas v. Giuliani (2002), the Second Circuit found for the city of New York after it fired an NYPD officer on IT detail who stuffed envelopes soliciting charitable donations full of racist and antisemitic clippings.

That officer, as then-Judge Sotomayor pointed out in her dissent, acted anonymously, and it was only the city‘s investigation that even tied what he did to the NYPD’s good name. All the same, the court held that the First Amendment couldn‘t force the NYPD to continue to employ a cop whose speech, by virtue of its bigotry, had the potential to so drastically shake residents‘ faith in and respect for the police, make officers dislike and distrust each other and risk the NYPD’s mission.

So the sheriff may very well have been right to discipline White for his MUSLIM HOLLER MONKEY post. A point in White’s favor is that he didn’t make the post at work. But it was deeply frivolous and unserious, implying White‘s less than strong interest in what was said, and if the hordes of internet commenters bearing down on the sheriff’s Facebook page are anything to go by, it was both visible and potentially highly disruptive.

The more interesting and troubling question is whether some viewpoints are inherently disruptive to government work. Is there any doubt that White wouldn’t have gotten into trouble if he’d posted a glowing sendoff for the Obamas, or watered down his low opinion until it was sufficiently inoffensive? Should the government’s interest in maintaining order and doing what it wants to do allow it to specifically restrict unpopular speech?

Maybe Deputy White can think it over, and get back to us with something timely and constructive. After all, he’s got a couple weeks left to devote to intellectual pursuits.

UPDATE: Sheriff Woods was kind enough to provide me with a copy of the statement. The allegations about Deputy White are true, and the policy that limits how severely he can be punished comes from a police merit board created at the suggestion of Woods’ predecessor, Terry Keelin, in 2009.

[1] Not Deputy White!

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