21-719

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Salvatore Davi,
Plaintiff-Appellee,
v.
Michael P. Hein, Samuel Spitzberg, Krista Rock, and Jill Shadick,
Defendants-Appellants,
Eric Schwenzfeier, Sharon Devine, Samuel Roberts, Donna Faresta,
and Wilma Brown-Philips,
Defendants

On Appeal From the United States District Court

for the Eastern District of New York

Brief of Institute for Free Speech and Cato Institute

as Amici Curiae in Support of Plaintiff-Appellee

Alan Gura Ilya Shapiro Eugene Volokh*

Institute for Trevor Burrus First Amendment
Free Speech Cato Institute Amicus Brief Clinic
1150 Conn. Ave. N.W. 1000 Mass. Ave. N.W. UCLA School of Law
Suite 801 Washington, DC 20001 405 Hilgard Ave.
Washington, DC (202) 842-0200 L.A., CA 90095
20036 [email protected] (310) 206-3926
(202) 301-3300 [email protected] [email protected]
[email protected] Counsel of Record

* Counsel would like to thank Sofie Oldroyd, Michael Burnett, and

Jason Lundry, UCLA School of Law students who worked on the brief.
 RULE 26.1 DISCLOSURE STATEMENT

Amici Curiae Institute for Free Speech and Cato Institute are

nonprofit corporations that have no parent companies, subsidiaries, or

affiliates and do not issue shares to the public.

i
 TABLE OF CONTENTS

Rule 26.1 Disclosure Statement.................................................................. i

Table of Authorities .................................................................................. iii

Interest of Amici Curiae ............................................................................. 1

Summary of Argument ............................................................................... 2

Argument .................................................................................................... 4

I. Davi Spoke Off-Duty, in a Private Conversation on a Friend’s

Facebook Page ...................................................................................... 4

II. OTDA’s Argument Is Incompatible With the Supreme Court’s

Reasoning In Republican Party v. White ............................................ 7

III. OTDA’s Reasoning Would Undermine Both the Right of

Government Employees to Inform the Public and the Public’s
Right to Receive Information About Government .............................. 9

IV. This Court Should Not Allow OTDA to Impose a “Snooper’s

Veto” On Davi ..................................................................................... 11

V. The Trial Court Correctly Concluded That OTDA’s Decision to

Fire Davi Was Unreasonable............................................................. 16

VI. OTDA’s Governing Regulations Do Not Call for Davi’s Recusal ..... 19

Conclusion ................................................................................................. 23

Certificate of Compliance ......................................................................... 25

Certificate of Service ................................................................................ 26

ii
 TABLE OF AUTHORITIES

Cases

1616 Second Ave. Rest., Inc. v. N.Y. State Liquor Auth., 75

N.Y.2d 158 (1990)............................................................................. 3, 21

Bible Believers v. Wayne Cty., 805 F.3d 228 (6th Cir. 2015)... 4, 15, 22, 23

Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485

(1984) .................................................................................................... 16

Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of

N.Y., 447 U.S. 557 (1980)..................................................................... 23

City of Ladue v. Gilleo, 512 U.S. 43 (1994) .............................................. 14

City of San Diego v. Roe, 543 U.S. 77 (2004) ........................................... 10

Compasso v. Sheriff of Sullivan Cty., 29 A.D.3d 1064

(2006) .............................................................................................. 20, 21

Consol. Edison Co. of N.Y., Inc. v. Pub. Serv. Comm’n of

N.Y., 447 U.S. 530 (1980)..................................................................... 10

Craig v. Rich Twp. High School Dist. 227, 736 F.3d 1110
(7th Cir. 2013) ...................................................................................... 13

Grant v. Senkowski, 146 A.D.2d 948 (1989) ............................................ 20

Harman v. City of New York, 140 F.3d 111 (2d Cir. 1998) ..................... 17

Harnishfeger v. United States, 943 F.3d 1105 (7th Cir.

2019) ................................................................................. 3, 7, 12, 13, 19

Jeffries v. Harleston, 52 F.3d 9 (2d Cir. 1995)..................................... 9, 17

Kreimer v. Bureau of Police, 958 F.2d 1242 (3d Cir. 1992) ..................... 10

Liverman v. City of Petersburg, 844 F.3d 400 (4th Cir.

2016) ....................................................................................................... 7
iii
Ovadal v. City of Madison, 416 F.3d 531 (7th Cir. 2005) ....................... 16

Packingham v. North Carolina, 137 S. Ct. 1730 (2017) ........................... 7

Pickering v. Bd. of Educ., 391 U.S. 563 (1968) ........................ 9, 10, 11, 19

Reno v. ACLU, 521 U.S. 844 (1997) ......................................................... 15

Republican Party of Minnesota v. White, 536 U.S. 765

(2002) .............................................................................................. 7, 8, 9

United States v. Marcavage, 609 F.3d 264 (3d Cir. 2010) ...................... 16

Virginia State Bd. of Pharmacy v. Va. Citizens Consumer

Council, Inc., 425 U.S. 748 (1976) ......................................................... 9

Waters v. Chaffin, 684 F.2d 833 (11th Cir. 1982) ....................... 2, 5, 6, 24

Waters v. Churchill, 511 U.S. 661 (1994) ...................................... 2, 10, 19

Withrow v. Larkin, 421 U.S. 35 (1975) .................................................... 20

Regulations

N.Y. COMP. CODES R. & REGS. tit. 18, § 358-5.6................................... 8, 20

iv
 INTEREST OF AMICI CURIAE 1

The Institute for Free Speech is a nonpartisan, nonprofit organization

dedicated to the protection of the First Amendment rights of speech,

press, assembly, and petition. In addition to scholarly and educational

work, the Institute represents individuals and civil society organizations

in litigation securing their First Amendment liberties.

The Cato Institute was established in 1977 as a nonpartisan public

policy research foundation dedicated to advancing the principles of

individual liberty, free markets, and limited government. Cato’s Robert

A. Levy Center for Constitutional Studies was established in 1989 to

promote the principles of limited constitutional government that are the

foundation of liberty. Toward those ends, Cato conducts conferences,

publishes books, studies, the annual Cato Supreme Court Review, and

files amicus briefs with the courts.

1 No party or party’s counsel has authored this brief in whole or in

part, or contributed money that was intended to fund preparing or
submitting the brief. No person has contributed money that was intended
to fund preparing or submitting the brief, except that UCLA School of
Law paid the expenses involved in filing this brief. All parties have
consented to the filing of this amici brief.
1
 SUMMARY OF ARGUMENT

The First Amendment protects government employees who speak on

matters of public concern. This is in part because public employees “are

often in the best position to know what ails the agencies for which they

work,” so “public debate may gain much from their informed opinions.”

Waters v. Churchill, 511 U.S. 661, 674 (1994) (plurality opinion).

A government employee’s speech is afforded particularly strong

protection when—as in this case—it takes place outside the workplace,

on the employee’s own time, in a private conversation among friends. As

a general rule, courts should be “loath[] to sanction the intrusion of the

government’s ear into the private lives of its employees.” Waters v.

Chaffin, 684 F.2d 833, 839 (11th Cir. 1982).

Here, the petitioners (referred to collectively as the Office of

Temporary Disability Assistance, or OTDA) sought to fire Davi because

of statements he made off-duty in response to a suggestion to expand the

public benefit system, a topic that is quintessentially a matter of public

concern and on which he has special knowledge. In the court below,

OTDA failed to show that the statements caused any actual disruption;

2
likewise, OTDA failed to credibly show a substantial likelihood of

disruption.

But beyond that, Davi’s statements were made while he was off duty,

and were directed to friends of a Facebook friend of his, in a private

Facebook group. OTDA only found out about Davi’s statements because

one of the friends—who took umbrage at the policy views he expressed—

leaked them. OTDA explained its attempt to fire Davi, in large part,

based on the unverified claim by the person that she informed the Legal

Aid Society about Davi’s statements. OTDA’s decision to fire Davi thus

represents an unacceptable imposition of a “snooper’s veto,” Harnishfeger

v. United States, 943 F.3d 1105, 1118 (7th Cir. 2019).

Davi’s statements also do not show recusable bias. OTDA’s governing

regulations provide specifically that a hearing officer can be recused if he

shows bias or partiality to a party. Davi’s statements only addressed

abstract matters of policy—they certainly do not show that he “has a

preconceived view of facts at issue in a specific case,” which can justify

recusal, “as opposed to prejudgment of general questions of law or policy,”

which cannot justify refusal. 1616 Second Ave. Rest., Inc. v. N.Y. State

Liquor Auth., 75 N.Y.2d 158, 161 (1990) (emphasis added).

3
 And it is unlikely that many applicants would improperly seek Davi’s

recusal. That some might do so cannot justify OTDA’s conduct: OTDA

cannot constitutionally fire or transfer Davi “as an expedient alternative

to containing or snuffing out” improper recusal requests. Bible Believers

v. Wayne Cty., 805 F.3d 228, 252 (6th Cir. 2015) (en banc) (explaining

that “[w]hen a peaceful speaker, whose message is constitutionally

protected, is confronted by a hostile crowd,” the government “may go

against the hecklers” but cannot “unnecessarily infringe upon the

constitutional rights of law-abiding citizens”).

The district court properly found that Davi’s statements were on a

matter of public concern. It correctly concluded that OTDA had failed to

show that the government interest outweighed Davi’s free speech

interest. Accordingly, the grant of partial summary judgment in Davi’s

favor should be affirmed.

ARGUMENT

I. Davi Spoke Off-Duty, in a Private Conversation on a Friend’s

Facebook Page

Public employees have an “interest in being free from unnecessary

work-related restrictions while off-duty.” Waters v. Chaffin, 684 F.2d at

4
837. This is especially so when the “off-duty restrictions” “unnecessarily

impinge upon private, social conversation.” Id. at 838.

In Waters v. Chaffin, the plaintiff police captain was demoted and

transferred because, while talking off duty with a fellow officer, the

plaintiff called their chief a “bastard,” “‘as sorry as they come and nothing

but a back stabbing son of a bitch.’” Id. at 834. But the Eleventh Circuit

held that punishing the plaintiff for such speech was unconstitutional,

id. at 841:

[The plaintiff spoke] after he had left work, while he was out of
uniform, while he was out of the department’s jurisdiction, and to a
person he considered a friend. We think it quite reasonable that he
assumed he could vent a little steam over drinks, and we think that
[he], like everyone, has a legitimate interest in maintaining a zone
of privacy where he can speak about work without fear of censure.
It must be remembered that we are talking about off-duty
shoptalk, which, although regrettably indiscreet and tactless, is
nonetheless basically idle barroom chatter. Such conversation
generally is not subject to sanction. We do not doubt that the
department may restrict the actions of its off-duty officers in many
ways, but it does not follow that these off-duty restrictions may
unnecessarily impinge upon private, social conversation. Absent
significant countervailing governmental interests, we are loath[] to
sanction the intrusion of the government’s ear into the private lives
of its employees.

Id. at 837-39 (emphasis and paragraph break added) (cleaned up).

Davi’s statements were likewise made “after hours,” Mem. of Law in

Supp. of Pl.’s Mot. for Partial Summ. J. at 15, Davi v. Roberts, No. 16-cv-

5
05060 (E.D.N.Y. Oct. 3. 2019) (ECF No. 81), while he was conversing “on

the personal Facebook page of someone he knew.” (SPA 3.) Management

only learned of them because they were leaked by a participant to the

conversation. (Id.) 2

Indeed, Davi’s statements merit still more protection than those in

Waters v. Chaffin, because Davi’s statements were on a quintessential

matter of public concern. In Waters v. Chaffin, the court held the

statements were protected even though “[t]he public has little interest in

an individual’s uncouth deprecations of his superior, so the public’s right

of access to information is not implicated in this case.” 684 F.2d at 838

n.11 (citations omitted).

And of course, social media—“today,” “the most important place . . . for

the exchange of views”—is entitled to the same First Amendment

protections as any other form of media. Packingham v. North Carolina,

2 In Waters v. Chaffin, the person who reported the plaintiff’s

statements was also employed by the police department, so she arguably
had a legitimate basis for doing so. Not so for Ms. Lloyd’s report, which
was also not entirely candid: she falsely claimed not to know Davi, and
omitted that she was arguing with him at the time the complained-of
statements were made. (SPA 5-6.) It would seem that Ms. Lloyd’s report
was motivated by ill will towards Davi and his view on the welfare
system, not solicitude for public benefits applicants.
6
137 S. Ct. 1730, 1735, 1738 (2017); see also Liverman v. City of

Petersburg, 844 F.3d 400, 404-06, 411 (4th Cir. 2016) (holding that police

department’s discipline of plaintiff sergeants who posted Facebook

comments critical of department policy was unconstitutional);

Harnishfeger, 943 F.3d at 1118-19 (holding that plaintiff’s termination

because of Facebook post advertising plaintiff’s book about her

experiences as a phone sex worker was unconstitutional).

II. OTDA’s Argument Is Incompatible With the Supreme Court’s

Reasoning In Republican Party v. White

Distilled to its essence, OTDA’s argument is that it can fire Davi

because his view on the expansion of welfare may have become publicly

known. Yet this argument is inconsistent with the logic of Republican

Party of Minnesota v. White, which struck down a rule barring judicial

candidates from “announc[ing]” their “views on disputed legal or political

issues.” 536 U.S. 765, 768 (2002) (cleaned up).

The government in White claimed that this “announce clause”

“preserv[ed] the impartiality of the state judiciary and preserv[ed] the

appearance of the impartiality of the state judiciary.” Id. at 775. The

Court disagreed: focusing on the “root meaning” of impartiality—“the

lack of bias for or against either party to a proceeding”—the Court

7
concluded that the announce clause was “barely tailored to serve that

interest at all.” Id. at 775-76. “[S]peech for or against particular issues”

did not show bias, or the appearance of bias, “for or against particular

parties.” Id. at 776-77.

Likewise, in this case, OTDA’s governing regulations expressly

require recusal of a hearing officer who has “displayed bias or partiality

to any party to the hearing.” N.Y. COMP. CODES R. & REGS. tit. 18, § 358-

5.6(c)(1)(iii) (emphasis added). OTDA, like the government in White,

seeks to justify its punishment of speech by arguing that Davi’s Facebook

statements “raise[] at least the appearance of . . . partiality” and “would

jeopardize the public’s confidence in the fair hearing system.”

(Appellants’ Br. 17.) But, as in White, Davi was speaking “against [a]

particular issue[],” 536 U.S. at 776—the expansion of welfare—not about

any person. As in White, such a restriction on speech is unconstitutional.

Pappas v. Giuliani, 290 F.3d 143, 146-47 (2d Cir. 2002) (cited by

Appellants’ Br. 24), falls on the bias-against-party side of the line:

Pappas’s racist and anti-Semitic speech exhibited bias against particular

racial, ethnic, or religious groups. Id.; see also Locurto v. Giuliani, 447

F.3d 159 (2d Cir. 2006) (plaintiff’s float identified a particular racial

8
group); Jeffries v. Harleston, 52 F.3d 9 (2d Cir. 1995) (plaintiff’s speech

identified a particular ethnic group). In contrast, Davi’s comments

regarding welfare policy dealt with a policy issue (the availability of

welfare benefits). And, as with the judicial speech held to be

constitutionally protected in White, such comments at most showed the

sort of opinion about a policy issue that people who had extensively dealt

with the issue will naturally have—whether that opinion ends up being

a preference for broader welfare benefits or for narrower ones.

III. OTDA’s Reasoning Would Undermine Both the Right of

Government Employees to Inform the Public and the Public’s
Right to Receive Information About Government

Whether to expand the welfare system is, ultimately, a question for

the democratic process. “On such a question free and open debate is vital

to informed decision-making by the electorate.” Pickering v. Bd. of Educ.,

391 U.S. 563, 571-72 (1968).

The First Amendment also protects the “right to receive information

and ideas.” Virginia State Bd. of Pharmacy v. Va. Citizens Consumer

Council, Inc., 425 U.S. 748, 757 (1976) (citation and internal quotation

marks omitted). This is because “the protection afforded is to the

communication, to its source and to its recipients both,” id., and “the right

9
to receive ideas is a necessary predicate to the recipient’s meaningful

exercise of his own rights of speech, press, and political freedom,” Kreimer

v. Bureau of Police, 958 F.2d 1242, 1254 (3d Cir. 1992) (citation omitted).

“Government employees are often in the best position to know what

ails the agencies for which they work; [thus,] public debate may gain

much from their informed opinions.” Waters v. Churchill, 511 U.S. at 674

(plurality opinion). “Underlying the decision in Pickering is the

recognition that public employees are often the members of the

community who are likely to have informed opinions as to the operations

of their public employers . . . . Were they not able to speak up on these

matters, the community would be deprived of informed opinions on public

matters.” City of San Diego v. Roe, 543 U.S. 77, 80-82 (2004). Restricting

speech such as Davi’s unduly interferes with the community’s ability to

access such opinions, and would “allow th[e] government”—or partisan

actors such as Ms. Lloyd—to “control . . . the search for political truth,”

Consol. Edison Co. of N.Y., Inc. v. Pub. Serv. Comm’n of N.Y., 447 U.S.

530, 538 (1980).

Davi has a wealth of knowledge about the public benefits system:

“During his tenure, [Mr.] Davi often presided over as many as thirty

10
hearings per day to review decisions adverse to benefits applicants and

recipients.” (Appellants’ Br. 6.) Since he worked as a hearing officer for

six years (id.), he has presumably reviewed many thousands of denials.

Thus, he is well placed to analyze proposals to change the benefits

system, and his criticism of an article calling for the expansion of welfare

is valuable to his acquaintances’ understanding of the proposal.

“Accordingly, it is essential that [he and others in similar positions] be

able to speak out freely on such questions without fear of retaliatory

dismissal.” Pickering, 391 U.S. at 572.

IV. This Court Should Not Allow OTDA to Impose a “Snooper’s

Veto” On Davi

It was Ms. Lloyd, not Davi, who spread knowledge of comments Davi

made on a private Facebook page. 3 If that can lead to Davi’s firing, then

every government employee would be at the mercy of the most easily

offended participant in any of their conversations. This will chill a vast

amount of speech by government employees on many different topics of

public concern.

3 “The complainant who alerted OTDA to Davi’s Facebook comments

confirmed that she had sent a copy of the comments to Project FAIR,
which maintains space in the lobby of the fair hearing waiting room in
OAH’s Brooklyn office.” (Appellants’ Br. 26.)
11
 Indeed, the Seventh Circuit rejected a similar argument in

Harnishfeger: The court there held that the defendants could not

constitutionally fire the plaintiff out of concern that a third party would

spread information that the plaintiff posted to Facebook. 943 F.3d at

1118.

In Harnishfeger, a government employee posted on her Facebook page

about her new self-published book, Conversations with Monsters: 5 Chill-

ing, Depraved and Deviant Phone Sex Conversations. Id. at 1110. That

book was based on her past job as a phone sex operator, where she had

concluded that many callers were “vile, unrepentant, disgusting poor

excuses for men.” Id. at 1109 (cleaned up). The book “recounted five of

[her] most horrifying phone-sex calls and meditated on the social role of

phone-sex operators and on her own experiences as one of them.” Id.

Plaintiff’s Facebook page was “set to private,” so only “her [Facebook]

‘friends’ could view what she posted there.” Id. (some internal quotation

marks omitted). Since the plaintiff had published the book under a

pseudonym, “only [her] Facebook ‘friends’ could tie her to it.” Id.

But “[s]hortly after publishing Conversations,” the plaintiff began

working at the Indiana Army National Guard’s Family Program Office.

12
Id. at 1109-10. Later, “[the plaintiff’s] direct supervisor[] asked to become

her Facebook ‘friend.’” Id. at 1111. “She accepted . . . and thereby gave

[the supervisor] access to all of her ‘friends-only’ Facebook activity.” Id.

The supervisor found the post announcing Conversations’ publication,

bought a copy, and “brought the book’s contents to the attention of . . . the

Guard’s State Family Program Director.” Id. The Director fired the

plaintiff, explaining that the “‘activities and conduct found on [the

plaintiff]’s social media Facebook account . . . do not favorably represent

our Family Program Office or its core programs.’” Id. at 1117. But the

Seventh Circuit rejected this argument:

The district court weighed in defendants’ favor the possibility that

[the plaintiff’s supervisor], not [the plaintiff], would disrupt the
Guard’s mission by spreading knowledge of Conversations. We
must disagree. Aside from the lack of evidence on this point, the
government cannot be handed a “snooper’s veto” when it uncovers
otherwise secreted employee speech and then invokes the
possibility that its own agents would publicize it.

Id. The court conceived of the “snooper’s veto” as an extension of the

heckler’s veto. Id. (citing Craig v. Rich Twp. High School Dist. 227, 736

F.3d 1110, 1121 (7th Cir. 2013) (recognizing that “heckler’s veto” cannot

be used to silence unpopular speech)).

13
 The Seventh Circuit’s analysis is correct: Allowing firing based on a

snooper’s veto would powerfully deter government employees from

discussing matters of public concern even in private settings. And the

same analysis applies to OTDA’s actions in this case.

Indeed, OTDA’s reasoning would be even more harmful than the

government’s approach in Harnishfeger, because it would extend this sort

of surveillance to all social media posts, whether made on the employee’s

own page or elsewhere. Under OTDA’s reasoning, government employees

would have to consider the sensibilities not only of those who currently

have access to their Facebook friends’ pages, but also of those who may

gain access to those pages in the future. To be safe, government

employees would have to go back through their entire social media

history and scrub any posts that may cause controversy.

The snooper’s veto is particularly insidious because of the chilling

effect it would have on the First Amendment rights of both public

employees and their friends. The Supreme Court has recognized that “the

identity of the speaker is an important component of many attempts to

persuade.” City of Ladue v. Gilleo, 512 U.S. 43, 56 (1994). This is because

people generally trust their friends and acquaintances more than they

14
trust strangers, and are more willing to listen to those in their social

circle than to strangers. See id. at 56 n.14. Thus, to the extent that the

risk of a snooper’s veto pressures public employees to self-censor on

matters of public concern when speaking to their Facebook friends, it

would abridge their right to speak to the audience that they are most

likely to persuade. Likewise, the snooper’s veto would infringe the right

of their friends to receive information from those who they would find

most persuasive.

And the Seventh Circuit’s rejection of the “snooper’s veto” should apply

equally to snooping by nongovernment agents (such as Ms. Lloyd) and

not just by the speaker’s supervisor. The rejection of the snooper’s veto is

an extension of the rejection of the heckler’s veto, and the typical

heckler’s veto scenario is one in which members of “the public” use “the

government’s help[] to shout down unpopular ideas.” Melzer v. Board of

Education, 336 F.3d 185, 199 (2d Cir. 2003); Reno v. ACLU, 521 U.S. 844,

880 (1997) (striking down provisions of Communications Decency Act

which “would confer broad powers of censorship, in the form of a

‘heckler’s veto,’ upon any opponent of indecent speech”); Bible Believers,

805 F.3d at 255 (en banc) (holding that there was “no reasonable dispute”

15
that the respondent county’s sheriffs “effectuated a heckler’s veto” by

failing to protect the petitioners from the “lawlessness of the hecklers”);

United States v. Marcavage, 609 F.3d 264, 282 nn.13 & 14, 283 (3d Cir.

2010) (holding that park rangers unconstitutionally imposed heckler’s

veto by removing petitioner, whose anti-abortion protest included “vivid

depictions of mutilated fetuses,” because “visitors and pedestrians were

disturbed by and complained about [petitioner]’s preaching and the

graphic images”); Ovadal v. City of Madison, 416 F.3d 531, 537-38 (7th

Cir. 2005) (holding that, when defendants banned plaintiff from

protesting on highway overpasses because “drivers, angry with the

message displayed, began driving erratically and causing congestion on

the highway,” “it is the reckless drivers, not [petitioner], who should have

been dealt with by the police”; “there is no heckler’s veto” (cleaned up)).

V. The Trial Court Correctly Concluded That OTDA’s Decision

to Fire Davi Was Unreasonable

Courts must ensure that a judgment in a First Amendment case “does

not constitute a forbidden intrusion on the field of free expression.” Bose

Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 508 (1984). As

explained above, Davi’s private speech concerned the broad purpose and

role of the public benefit system, a quintessential subject of public

16
concern. Thus, for instance, in Harman v. City of New York, this Court

ruled in favor of a child welfare agency employee who was disciplined for

public comments about flaws in the child welfare system because

“[d]iscussion regarding current government policies and activities is

perhaps the paradigmatic matter of public concern.” 140 F.3d 111, 118

(2d Cir. 1998).

Here, OTDA acted unreasonably when it judged that Davi’s Facebook

comments would threaten the agency’s operations. “[T]he closer the

employee’s speech reflects on matters of public concern, the greater must

be the employer’s showing that the speech is likely to be disruptive before

it may be punished.” Jeffries, 52 F.3d at 13.

OTDA received the anonymous complaint with screenshots of Davi’s

comments from a person claiming to have “observed a disturbing

exchange on Facebook regarding individuals receiving public assistance.”

(A. 65.) The anonymous complainant was actually Ms. Lloyd, a former

law school classmate of Davi’s, and the person who was arguing with

Davi when he made the comments. (A. 66.) The complaint incorrectly

stated that its author did “not personally know Davi nor are we Facebook

17
‘friends’; [she] merely observed his comments on a mutual friend’s

Facebook wall.” (A. 65.)

OTDA’s argument that Davi’s comments were likely to be disruptive

turns on the claim that members of the public were likely to see the

comments and request reconsiderations and recusals, thus gumming up

the works of OTDA’s operations. But Davi’s comments were unlikely to

pose such a threat because they were posted on a private Facebook page,

invisible to members of the public. Indeed, OTDA failed to investigate

whether Davi’s comments were visible to the broader public. (A. 278.)

OTDA’s argument that the comments were disseminated more widely

was based on Ms. Lloyd’s contention that she had sent the complaint to

Project FAIR. (A. 65.) But no OTDA official asked Project FAIR if they

had, in fact, received the letter. (A. 163-64, 183.) And OTDA apparently

never received complaints from Project FAIR representatives about any

social media comments that Davi or any other ALJ had made. (SPA 18.)

Even though Davi’s comments were not public, they still could have

become public at a later date, thus enabling the kind of disruption to

operations that OTDA feared. But there is no evidence in the record to

suggest that OTDA considered this possibility when it judged that

18
suspending Davi was proper. Courts must give “substantial weight to

government employers’ reasonable predictions of disruption.” Waters v.

Churchill, 511 U.S. at 673 (plurality opinion). But they do not need to

give “substantial weight” to possibilities of disruption that government

employers never actually considered:

Pickering balancing is not like rational basis review . . . , under

which it is enough to imagine any rational underpinning for a
challenged government action. First Amendment rights cannot be
trampled based on hypothetical concerns that a governmental
employer never expressed. A court must look instead to what the
public employer’s concerns really were.

Harnishfeger, 943 F.3d at 1116.

OTDA thus had little evidence to suggest that Project FAIR—or

anyone else who could reasonably interfere with OTDA’s operations—

had actually received a copy of Davi’s Facebook comments. The agency

failed to perform basic diligence to confirm that Davi’s comments had

been made public. OTDA has not met its burden of making a “substantial

showing” that disruption was likely.

VI. OTDA’s Governing Regulations Do Not Call for Davi’s Recusal

The court below briefly observed that “[i]t is unclear whether a hearing

officer’s statement on a matter of policy, not directed at any specific ‘party

to the hearing,’ would entitle a benefit applicant to that hearing officer’s

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recusal.” (SPA 20.) In context, this seems to convey skepticism that

recusal would be justified—and this skepticism is warranted.

OTDA’s governing regulations guarantee public benefit applicants a

hearing “conducted by an impartial hearing officer.” N.Y. COMP. CODES

R. & REGS. tit. 18, § 358-5.6(a). They provide for recusal of a hearing

officer who has “displayed bias or partiality to any party to the hearing.”

Id. § 358-5.6(c)(1)(iii) (emphasis added). Amici are not aware of any

authoritative construction of this specific regulation. But New York cases

generally establish that the bar to recusal of a hearing officer is quite

high.

“In the sphere of administrative law, ‘state administrators are

assumed to be men of conscience and intellectual discipline, capable of

judging a particular controversy fairly on the basis of its own

circumstances.’” Grant v. Senkowski, 146 A.D.2d 948, 949 (1989) (quoting

Withrow v. Larkin, 421 U.S. 35, 55 (1975)). “Because hearing officers are

presumed to be free from bias, an appearance of impropriety is [an]

insufficient” basis for recusal. Compasso v. Sheriff of Sullivan Cty., 29

A.D.3d 1064, 1065 (2006) (citations omitted). “Mere allegations of bias

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are insufficient to require recusal or disqualification of [a] Hearing

Officer.” Id. at 1064 (citation omitted).

Further, “administrative officials are expected to be familiar with the

subjects of their regulation and to be committed to the goals for which

their agency was created. Thus, a predisposition on questions of law or

policy and advance knowledge of general conditions in the regulated field

are common.” 1616 Second Ave. Rest., 75 N.Y.2d at 162. Therefore, “[d]is-

qualification is more likely to be required where an administrator has a

preconceived view of facts at issue in a specific case as opposed to

prejudgment of general questions of law or policy.” Id. at 161 (emphasis

added). A hearing officer cannot be recused based on his public

statements unless “a disinterested observer [could] conclude that he has

in some measure adjudged the facts as well as the law of a particular case

in advance of hearing it.” Id. at 162 (cleaned up) (emphasis added).

Davi’s statements therefore would not be a basis for recusal. They

simply expressed his view on three aspects of the public benefits system:

(1) its proper role in society (the social safety net “should be of limited

duration and designed to get people back to self-sufficiency,” A. 66); (2)

that long-term or perpetual welfare is harmful (it “create[s] an

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underclass dependent on government handouts” and leads to

“generational poverty,” id.); and (3) the proper measure of its success

(“[t]hese programs should be judge[d] by how many people or families

they get back on their feet and off government assistance,” id.). Davi’s

statements were not directed at any person who had appeared, or might

appear, before him, nor did he express any opinion on facts pertinent to

any specific applicant. Accordingly, it is unlikely that Davi could have

been recused on the basis of his Facebook statements.

Of course, some applicants might still nonetheless request Davi’s re-

cusal, even without an adequate legal basis. But the risk of such

unfounded requests by others cannot justify OTDA infringing his First

Amendment rights: “[i]f the speaker’s message does not fall into one of

the recognized categories of unprotected speech, the message does not

lose its protection under the First Amendment due to the lawless reaction

of those who hear it.” Bible Believers, 805 F.3d at 252 (en banc) (footnote

omitted). OTDA cannot constitutionally fire or otherwise punish Davi “as

an expedient alternative to containing or snuffing out” improper recusal

requests. Id. And the “absence” of recusal requests and requests to

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reconsider Davi’s prior decisions further “sharply undercuts [OTDA’s]

theory.” (SPA 20.)

Accordingly, this “conditional and remote eventualit[y] simply cannot

justify silencing” Davi’s speech on a matter of serious public concern.

Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S.

557, 569 (1980). And “[i]n a balance between two important interests—

free speech on one hand, and” an incremental burden on OTDA’s

resources “on the other—the scale is heavily weighted in favor of the First

Amendment.” Bible Believers, 805 F.3d at 252 (en banc) (rejecting a

heckler’s veto as a basis for restricting speech).

CONCLUSION

Government employees are entitled to broad First Amendment

protection when they speak on matters of public concern, because they

are well positioned to inform the public about the government and its

problems. OTDA’s reasoning would significantly reduce this flow of

information to the public, by allowing a public employee to be fired for

any social media post that may engender mild controversy.

OTDA’s reasoning would also allow the “intrusion of the government’s

ear into the private lives of its employees,” Waters v. Chaffin, 684 F.2d at

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839, and would pressure government employees to self-censor even when

speaking off-duty among friends. This would infringe the right of

government employees to speak to those who will find them most

persuasive, and will infringe their friends’ right to receive information

from those by whom they are most likely to be persuaded. Accordingly,

amici respectfully ask that the judgment of the District Court be

affirmed.

Date: October 8, 2021 s/ Eugene Volokh

Attorney for Amici Curiae
Institute for Free Speech and
Cato Institute

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 CERTIFICATE OF COMPLIANCE

This brief complies with the type-volume limitation of 2d Cir. Loc. R.

29.1(c) because this brief contains 4,826 words, excluding the parts of the

brief exempted by Fed. R. App. P. 32(f).

This brief complies with the typeface requirements of Fed. R. App. P.

32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) be-

cause this brief has been prepared in a proportionally spaced typeface

using Microsoft Word 365 in 14-point Century Schoolbook.

Date: October 8, 2021 s/ Eugene Volokh

Attorney for Amici Curiae

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 CERTIFICATE OF SERVICE

I hereby certify that I electronically filed the foregoing Brief of

Institute for Free Speech as Amicus Curiae in Support of Plaintiff-

Appellee with the Clerk of the Court for the United States Court of

Appeals for the Second Circuit by using the appellate CM/ECF system on

October 8, 2021.

All participants in the case are registered CM/ECF users, and will be

served by the appellate CM/ECF system.

Date: October 8, 2021 s/ Eugene Volokh

Attorney for Amici Curiae

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