1) There have been many cases of bloggers who've worked for legislators around the country posting nasty items about other legislators, sometimes with their bosses' explicit approval.

My problem here is not with Councilwoman Mealy firing Hackshaw for his blogging if she chooses to do so--my only question there is whether her doing so would be violating an agreement between them--the rest is between her and her constituents (who I suspect will not care).

My problem is with Quinn firing Hackshaw. I do not believe there is any unviersal rule that legislative leaders can fire members of individual legislators' staffs for attacking other legislators.

Can you imagine Speakers Silver or Pelosi being allowed to fire Republican staffers for speaking ill of Democrats?

The prospect is both frightening and appalling.

2) Barron rightly made a royal stink over Quinn firing Plummer for speaking her mind (deranged as it was).

If Barron is now asking Quinn  to fire Hackshaw for doing the same, it is both politics and hypocrisy.

As you well know, the two are not mutually exclusive.   

"In most legislatures around the US (including the Congress & NY State Legislature)individual legislators hire and fire staff members. The NY City Council is the exception where everything is controlled by the top dog."

I'm not suggesting that Quinn should fire Hackshaw directly, Yoda. But if a staffer to an elected official publicly criticizes another elected official in a blog, then that staffer could be subject to termination. (If the staffer's boss supports the criticisms then that's another thing altogether).

And I refuse to believe that in any legislative body - from Congress on down - that a phone call from a 'top dog' to an individual legislator (when members of the same party) about a staffer won't have some effect. But maybe I just don't know enough about legislatures outside NY.

"My problem is with Quinn firing Hackshaw. I do not believe there is any unviersal rule that legislative leaders can fire members of individual legislators' staffs for attacking other legislators."

I concede this point, Gatemouth. Quinn wouldn't overstep her authority by trying to terminate Hackshaw. But she could use the political and/or legislative process to make life unpleasant for Mealy. Why she would do this for Barron is beyond understanding...but the option is always available.

I would be interested in reading the letter Hackshaw received from the Council. Did it say that termination was an option they could employ based on his blogging?

"Barron rightly made a royal stink over Quinn firing Plummer for speaking her mind."

Come on, GM, Plummer didn't just speak her mind. She was immature enough to publicly threaten another council member with assassination in the same room where James Davis was murdered by a political opponent. Since when is a threat considered protected speech?

"If Barron is now asking Quinn  to fire Hackshaw for doing the same, it is both politics and hypocrisy."

OK, you're right. It's both.

In my experienced I've seen staffers to an individual legislator  publicly deployed to criticize other members (I used to be so deployed myself), and I've seen legislators who just didn't keep their staff on a leash, belieiving that what they did on their own time was their own business.

What Quinn has done, and is apparently still doing, is trying to regulate the speech of staffers who work for individual legislators. Since, if the legislators had a problem with that, they could take care of the matter themselves, that qualifies in the category of what you call "another thing altogether,"

And yes, you are correct, legislators who let (or order) their staffers to do such things are subject to internal pressures, both laterally, and from the top down. That is not the situation Rock described. If Speaker Quinn, Chuck Barron or any other legislator wants to express their displeasure about Rock to Ms. Mealy, they are certainly within their rights to do so, although such efforts do come with the concommitant risk of exposure.

But, this is not the situation Rock described. Rock described being cautioned (with the threat of dismissal) by a Central Staffer about what he is and is not permitted to do on his own time. Such a caution would be appropriate if Rock were trying to get his boss to give a group Rock headed member-item money  (something which the Speaker's staff apparently has no problems with), but not in an instance like this.

Mealy is in a verrrry tough spot, now.

If Mealy does nothing to Hackshaw, then she is tacitly approving Hackshaw's conduct, and by extension, the sum and substance of his remarks. Does she have the intestinal fortitude to stand up to Barron and Quinn? Did Hackshaw run his article by Mealy before publishing it? If not, did he realize that, part-time or not, he is an AGENT of Council Member Mealy, and his actions could be imputed to her?

If Mealy attempts to discipline or restrain Hackshaw, then won't she be undermining her own standing as an independently elected official with the power to hire her own staff? Mealy knows that budget time is upon us, and she is aware of Quinn's power to move (or stall) legislation. Is it worth getting into a conflict with Quinn over Hackshaw?

Gatey and Co.,

I can't speak as to the City Council, but I clearly remember my first day working at the NYS Assembly, where it was made very clear to me that I, along with every other legislative staffer, worked at the pleasure of the SPEAKER!  I had been hired by an Assembly member and I could obviously be fired at will by the Assembly member, but that concept, that the Assembly Speaker, someone who I've never met and who did not get me the job and who knew nothing about the work I did, could also fire me at will, was so frightening that I still remember it today.

Gatey, my Albany roomate, who worked for a Republican, thus minority, Assembly member, received the same information.

As a practical matter, it's understood that 99.9% of the time, the individual Assembly member is the sole monarch in charge of his fiefdom (or LOB office) and the only instance I remember of the Speaker's office getting involved in staffing issues was when the staffer complained of abuse or mistreatment by the Assemblymember.  In those cases, the complainant was usually transferred to another legislator or to a position on central staff.

As far as Rock, if Darlene Mealy keeps him on staff after this blog post, I will lose a lot of respect or her as a person and as a politician.

You got it pretty much right. Taking the shilling of the king has its price, and Rock may have to pay it. 

My whole beef here is that I think Rock took Mealy's shilling, not Quinn's.

And you are correct that, whether rightly or wrongly, staffer's off-duty political actions do get imputed, fairly or not to their employers--sometimes by politicos and sometimes by the public. As such, employers do have the right to put staffers on a leash. My concern here is which employer does so.

I think both Mealy (if she really did give Rock free reign to do whatever he wanted--I assume that she did not order him to insult Barron or other Council Members) and Rock (for believing he had free reign, even if he was told that he did) have proven themsleves a bit clueless.   

"In my experienced I've seen staffers to an individual legislator publicly deployed to criticize other members (I used to be so deployed myself)..."

Sure, in a CAMPAIGN. But if the communications staffer for one Council Member chooses to criticize another Council Member in a blog, said staffer is risking his job. Period. The only way the staffer survives is for the principal to unequivocally back them up.

"Rock described being cautioned (with the threat of dismissal) by a Central Staffer about what he is and is not permitted to do on his own time."

So? You know very well that this is what happens in the political world all the time, GM. And all the First Amendment and other constitutional and civil rights related legal arguments won't make much difference. What happens next hinges on Mealy and Hackshaw.

And now I really want to see the letter Hackshaw got from the Council.

1) I am not talking about campaigns; I'm talking about legislative breakfasts and Community Board public hearings. Marty Connor played rough with the Republicans.

2) I was not talking about a "you're going to get yourself in trouble" cautioning. I am talking about a "you are violating the rules and the Speaker can terminate you at will" cautioning. If Chris Quinn wants to apply strict rules to the off-work time blogging of the Council's Central Staff and her own personal staff, she has the right to do so. But if Quinn wants to set limits on the off-work time blogging of the personal staffers of individual council members, I have a BIG problem with that (though I think Ms. Mealy and every other Council Member has the right to do set such limits upon their own staff).

Quinn certainly is within her rights to use her powers of persuasion (such as they are ) on Darleen Mealy, but Councilwoman Mealy should have the right to hire and fire as Councilwoman Mealy pleases.

On the other hand, your point about the political realities is correct, but only to a point. 

For instance, if Quinn did not have the power to fire Plummer, but only her considerable arsenal of persuasive powers, do you think she could have persuaded Barron to fire Plummer.

So while in Mealy's case it might be a distinction without a difference, it is not such in all cases. 

"As far as Rock, if Darlene Mealy keeps him on staff after this blog post, I will lose a lot of respect or her as a person and as a politician."

Why, JP? Isn't there an appropriate middle ground here?

Why can't Mealy tell Barron that she will deal with Hackshaw? Hackshaw may not like it, but he's got to submit to a reprimand. If not, he can resign.

Hackshaw would also have to decline writing about NYC councilmembers as long as he gets Council paychecks. In fact, he may have to submit ALL his articles for Mealy's review before publication and accept her critiques. With Room8, Hackshaw has no editors. Not so at the Council. Again, if Hackshaw doesn't like it, he can resign as a Mealy staffer.

The internet in general and blogging in particular has blurred the line between journalist and citizen-reporter. But in politics, either you work for the media or you work for the government. It's difficult if not impossible to do both. Imagine Ben Smith taking a job with a member of Congress while writing for Politico. I don't think so...

Did not notice you here, but your point about serving "at the pleasure of the Speaker" is the same as the one I made about Quinn's "obligation to monitor that a Council employee is not a no show and that other legal requirements are complied with."

Therefore, if a staffer for one member was accused of raping a staffer of another member, we could be sure that the Assembly Speaker would take it upon himself to see that justice was done.

OK, I get it.

Plummer was idiotic enough to publicly utter a comment that could only be construed as a potential threat. Does she and Barron think the whole world consists of morons who don't fully understand that "assassinate" wasn't used in a political context? At that point, Quinn acted on behalf of the Council as a institution, and moved to fire Plummer. I don't think that was unreasonable, given Plummer's outrageous behavior. And that's what a Speaker, or Majority Leader, does: act on behalf of the institution and the members that voted them into the leadership role. And a staffer threatening a member is an easy call.

Hackshaw is different. Hackshaw wrote an unflattering piece about Barron. Although we may think this is a gray area, the Council lawyers may have a different take. But this is why I don't think Quinn will move to fire Hackshaw directly, because it would infringe on Mealy's right to hire her own staff and set the stage for a risky confrontation - that is, of course, if Mealy chooses to fight.

When a person takes a job with a political organization like a legislature, that person willingly surrenders certain privileges in order to serve. It comes with the territory. 

I agree with your last paragraph, and I think nothing I've said implies otherwise.

And I will concede, especially in the light of James Davis, that Councilmembers may be ultra-sensitive to the word assassination, and given Plummer's pedigree, may even have taken her literally. Nonetheless, I think Barron had and has the right to the staff of his choice.  

But, Barron still defended Plummer on the basis of free speech, which means Barron is a hypocrite (maybe even more so, given the relative mildness of Hackshaw's offense).

Gatey,

Not that it matters as I believe the termination would still be upheld, but there is a NYS law that may govern (NY Labor Law 201-d).  For the unitiated, it reads as follows:

     §  201-d. Discrimination against the engagement in certain activities.
  1. Definitions. As used in this section:
    a. "Political activities" shall mean (i) running  for  public  office,
  (ii)   campaigning   for   a  candidate  for  public  office,  or  (iii)
  participating in fund-raising activities for the benefit of a candidate,
  political party or political advocacy group;
    b. "Recreational  activities"  shall  mean  any  lawful,  leisure-time
  activity,  for  which the employee receives no compensation and which is
  generally engaged  in  for  recreational  purposes,  including  but  not
  limited  to sports, games, hobbies, exercise, reading and the viewing of
  television, movies and similar material;
    c. "Work hours" shall mean, for purposes of this  section,  all  time,
  including  paid and unpaid breaks and meal periods, that the employee is
  suffered, permitted or expected to be engaged in work, and all time  the
  employee  is  actually  engaged  in  work.  This definition shall not be
  referred to in  determining  hours  worked  for  which  an  employee  is
  entitled  to  compensation  under  any law including article nineteen of
  this chapter.
    2. Unless otherwise provided by law, it  shall  be  unlawful  for  any
  employer  or  employment agency to refuse to hire, employ or license, or
  to discharge  from  employment  or  otherwise  discriminate  against  an
  individual in compensation, promotion or terms, conditions or privileges
  of employment because of:
    a.  an individual's political activities outside of working hours, off
  of the employer's premises and without use of the  employer's  equipment
  or other property, if such activities are legal, provided, however, that
  this paragraph shall not apply to persons whose employment is defined in
  paragraph  six of subdivision (a) of section seventy-nine-h of the civil
  rights law, and provided further that this paragraph shall not apply  to
  persons  who  would  otherwise  be prohibited from engaging in political
  activity pursuant to chapter 15 of title 5 and subchapter III of chapter
  73 of title 5 of the USCA;
    b. an individual's legal use  of  consumable  products  prior  to  the
  beginning  or after the conclusion of the employee's work hours, and off
  of the employer's premises and without use of the  employer's  equipment
  or other property;
    c.  an  individual's legal recreational activities outside work hours,
  off of the  employer's  premises  and  without  use  of  the  employer's
  equipment or other property; or
    d.  an  individual's  membership  in a union or any exercise of rights
  granted under Title 29, USCA, Chapter 7 or under article fourteen of the
  civil service law.
    3. The provisions of subdivision two of  this  section  shall  not  be
  deemed to protect activity which:
    a.  creates  a material conflict of interest related to the employer's
  trade secrets, proprietary information or other proprietary or  business
  interest;
    b.  with respect to employees of a state agency as defined in sections
  seventy-three and seventy-four of the public officers law  respectively,
  is  in  knowing  violation of subdivision two, three, four, five, seven,
  eight or twelve of section seventy-three or of section  seventy-four  of
  the  public  officers law, or of any executive order, policy, directive,
  or other rule which has been issued by the attorney  general  regulating
  outside  employment  or  activities  that could conflict with employees'
  performance of their official duties;
    c. with respect to employees of any employer  as  defined  in  section
  twenty-seven-a  of  this chapter, is in knowing violation of a provision
  of a collective bargaining agreement  concerning  ethics,  conflicts  of

  interest,  potential  conflicts  of interest, or the proper discharge of   official duties;     d.  with  respect  to  employees of any employer as defined in section   twenty-seven-a  of  this  chapter  who  are  not  subject   to   section   seventy-three  or seventy-four of the public officers law, is in knowing   violation of article eighteen of the general municipal law or any  local   law,  administrative  code  provision,  charter  provision  or  rule  or   directive of the mayor or any agency head of a city having a  population   of  one  million  or  more,  where  such  law,  code  provision, charter   provision, rule or directive concerns  ethics,  conflicts  of  interest,   potential  conflicts  of  interest,  or the proper discharge of official   duties and otherwise covers such employees; and     e. with respect to employees other  than  those  of  any  employer  as   defined in section twenty-seven-a of this chapter, violates a collective   bargaining   agreement   or   a  certified  or  licensed  professional's   contractual obligation to devote his or her entire  compensated  working   hours to a single employer, provided however that the provisions of this   paragraph  shall  apply  only  to professionals whose compensation is at   least fifty thousand dollars for the year  nineteen  hundred  ninety-two   and  in  subsequent  years  is an equivalent amount adjusted by the same   percentage as the annual increase or  decrease  in  the  consumer  price   index.     4.  Notwithstanding  the  provisions  of  subdivision  three  of  this   section, an employer shall not be in violation of this section where the   employer  takes  action  based  on  the  belief  either  that:  (i)  the   employer's  actions  were  required by statute, regulation, ordinance or   other governmental mandate, (ii) the employer's actions were permissible   pursuant to  an  established  substance  abuse  or  alcohol  program  or   workplace   policy,   professional  contract  or  collective  bargaining   agreement, or (iii) the individual's actions were deemed by an  employer   or  previous  employer  to  be  illegal or to constitute habitually poor   performance, incompetency or misconduct.     5. Nothing  in  this  section  shall  apply  to  persons  who,  on  an   individual  basis, have a professional service contract with an employer   and the unique nature of the services provided is such that the employer   shall be permitted, as part of such professional  service  contract,  to   limit   the  off-duty  activities  which  may  be  engaged  in  by  such   individual.     6. Nothing in this section shall prohibit an organization or  employer   from offering, imposing or having in effect a health, disability or life   insurance  policy that makes distinctions between employees for the type   of  coverage  or  the  price  of  coverage  based  upon  the  employees'   recreational  activities  or  use  of consumable products, provided that   differential premium rates charged employees reflect a differential cost   to the employer and that employers provide employees  with  a  statement   delineating  the  differential  rates  used  by  the  carriers providing   insurance for the employer, and provided further that such  distinctions   in  type  or price of coverage shall not be utilized to expand, limit or   curtail the rights or liabilities of any party with regard  to  a  civil   cause of action.     7.  a.  Where a violation of this section is alleged to have occurred,   the attorney general may apply in the name of the people of the state of   New York for  an  order  enjoining  or  restraining  the  commission  or   continuance  of  the  alleged unlawful acts. In any such proceeding, the   court may impose a civil penalty in the amount of three hundred  dollars   for  the  first  violation  and five hundred dollars for each subsequent   violation. 

    b. In addition to any other penalties or actions otherwise  applicable   pursuant  to  this chapter, where a violation of this section is alleged   to have occurred, an aggrieved individual may  commence  an  action  for   equitable relief and damages. 

 To the extent it matters, the U.S. Supreme Court's decision in Garcetti, which addresses First Amendment issue.

Not sure if the prior post went through--please delete if this is a duplicate.

    §  201-d. Discrimination against the engagement in certain activities.
  1. Definitions. As used in this section:
    a. "Political activities" shall mean (i) running  for  public  office,
  (ii)   campaigning   for   a  candidate  for  public  office,  or  (iii)
  participating in fund-raising activities for the benefit of a candidate,
  political party or political advocacy group;
    b. "Recreational  activities"  shall  mean  any  lawful,  leisure-time
  activity,  for  which the employee receives no compensation and which is
  generally engaged  in  for  recreational  purposes,  including  but  not
  limited  to sports, games, hobbies, exercise, reading and the viewing of
  television, movies and similar material;
    c. "Work hours" shall mean, for purposes of this  section,  all  time,
  including  paid and unpaid breaks and meal periods, that the employee is
  suffered, permitted or expected to be engaged in work, and all time  the
  employee  is  actually  engaged  in  work.  This definition shall not be
  referred to in  determining  hours  worked  for  which  an  employee  is
  entitled  to  compensation  under  any law including article nineteen of
  this chapter.
    2. Unless otherwise provided by law, it  shall  be  unlawful  for  any
  employer  or  employment agency to refuse to hire, employ or license, or
  to discharge  from  employment  or  otherwise  discriminate  against  an
  individual in compensation, promotion or terms, conditions or privileges
  of employment because of:
    a.  an individual's political activities outside of working hours, off
  of the employer's premises and without use of the  employer's  equipment
  or other property, if such activities are legal, provided, however, that
  this paragraph shall not apply to persons whose employment is defined in
  paragraph  six of subdivision (a) of section seventy-nine-h of the civil
  rights law, and provided further that this paragraph shall not apply  to
  persons  who  would  otherwise  be prohibited from engaging in political
  activity pursuant to chapter 15 of title 5 and subchapter III of chapter
  73 of title 5 of the USCA;
    b. an individual's legal use  of  consumable  products  prior  to  the
  beginning  or after the conclusion of the employee's work hours, and off
  of the employer's premises and without use of the  employer's  equipment
  or other property;
    c.  an  individual's legal recreational activities outside work hours,
  off of the  employer's  premises  and  without  use  of  the  employer's
  equipment or other property; or
    d.  an  individual's  membership  in a union or any exercise of rights
  granted under Title 29, USCA, Chapter 7 or under article fourteen of the
  civil service law.
    3. The provisions of subdivision two of  this  section  shall  not  be
  deemed to protect activity which:
    a.  creates  a material conflict of interest related to the employer's
  trade secrets, proprietary information or other proprietary or  business
  interest;
    b.  with respect to employees of a state agency as defined in sections
  seventy-three and seventy-four of the public officers law  respectively,
  is  in  knowing  violation of subdivision two, three, four, five, seven,
  eight or twelve of section seventy-three or of section  seventy-four  of
  the  public  officers law, or of any executive order, policy, directive,
  or other rule which has been issued by the attorney  general  regulating
  outside  employment  or  activities  that could conflict with employees'
  performance of their official duties;
    c. with respect to employees of any employer  as  defined  in  section
  twenty-seven-a  of  this chapter, is in knowing violation of a provision
  of a collective bargaining agreement  concerning  ethics,  conflicts  of

  interest,  potential  conflicts  of interest, or the proper discharge of   official duties;     d.  with  respect  to  employees of any employer as defined in section   twenty-seven-a  of  this  chapter  who  are  not  subject   to   section   seventy-three  or seventy-four of the public officers law, is in knowing   violation of article eighteen of the general municipal law or any  local   law,  administrative  code  provision,  charter  provision  or  rule  or   directive of the mayor or any agency head of a city having a  population   of  one  million  or  more,  where  such  law,  code  provision, charter   provision, rule or directive concerns  ethics,  conflicts  of  interest,   potential  conflicts  of  interest,  or the proper discharge of official   duties and otherwise covers such employees; and     e. with respect to employees other  than  those  of  any  employer  as   defined in section twenty-seven-a of this chapter, violates a collective   bargaining   agreement   or   a  certified  or  licensed  professional's   contractual obligation to devote his or her entire  compensated  working   hours to a single employer, provided however that the provisions of this   paragraph  shall  apply  only  to professionals whose compensation is at   least fifty thousand dollars for the year  nineteen  hundred  ninety-two   and  in  subsequent  years  is an equivalent amount adjusted by the same   percentage as the annual increase or  decrease  in  the  consumer  price   index.     4.  Notwithstanding  the  provisions  of  subdivision  three  of  this   section, an employer shall not be in violation of this section where the   employer  takes  action  based  on  the  belief  either  that:  (i)  the   employer's  actions  were  required by statute, regulation, ordinance or   other governmental mandate, (ii) the employer's actions were permissible   pursuant to  an  established  substance  abuse  or  alcohol  program  or   workplace   policy,   professional  contract  or  collective  bargaining   agreement, or (iii) the individual's actions were deemed by an  employer   or  previous  employer  to  be  illegal or to constitute habitually poor   performance, incompetency or misconduct.     5. Nothing  in  this  section  shall  apply  to  persons  who,  on  an   individual  basis, have a professional service contract with an employer   and the unique nature of the services provided is such that the employer   shall be permitted, as part of such professional  service  contract,  to   limit   the  off-duty  activities  which  may  be  engaged  in  by  such   individual.     6. Nothing in this section shall prohibit an organization or  employer   from offering, imposing or having in effect a health, disability or life   insurance  policy that makes distinctions between employees for the type   of  coverage  or  the  price  of  coverage  based  upon  the  employees'   recreational  activities  or  use  of consumable products, provided that   differential premium rates charged employees reflect a differential cost   to the employer and that employers provide employees  with  a  statement   delineating  the  differential  rates  used  by  the  carriers providing   insurance for the employer, and provided further that such  distinctions   in  type  or price of coverage shall not be utilized to expand, limit or   curtail the rights or liabilities of any party with regard  to  a  civil   cause of action.     7.  a.  Where a violation of this section is alleged to have occurred,   the attorney general may apply in the name of the people of the state of   New York for  an  order  enjoining  or  restraining  the  commission  or   continuance  of  the  alleged unlawful acts. In any such proceeding, the   court may impose a civil penalty in the amount of three hundred  dollars   for  the  first  violation  and five hundred dollars for each subsequent   violation. 

    b. In addition to any other penalties or actions otherwise  applicable   pursuant  to  this chapter, where a violation of this section is alleged   to have occurred, an aggrieved individual may  commence  an  action  for   equitable relief and damages. 

Try Gordon v. Griffith, 88 F.Supp 2nd 38 (EDNY), which stands for the proposition that there is no First Amendment protection for a legislative employee fired by their employer 

I see your point, JP. Can I offer you a different one?

Hillary Clinton and her agents made all sorts of negative charges and claims against Barack Obama during the last presidential campaign. Yet where is Clinton working now? Politics is a funny business. 

Mealy's hiring of Hackshaw was a bold move. She put an active blogger with a history of political and community involvement on her payroll. One obvious advantage is that Hackshaw's local Brooklyn network and knowledge will now be accessible to Mealy, a Brooklyn councilmember. 

However, one obvious downside has already reared its ugly head. Hackshaw also has a history of writing blog articles that are not only thoughtful and incisive, but at times vulgar and inflammatory.

There's a delicate balance that will need to be achieved if Hackshaw is going to continue to work for Mealy. But it seems that, whatever the outcome, Mealy made a bold move by hiring Hackshaw. Maybe she's finally completed the transformation from naive civic leader to political professional?

Gordon v. Griffith is not on the web on a free site, but here is an article about it: http://www.lidbrooklyn.org/bp51500.htm

In addition, this case is on the web, and quotes from perhaps its most important paragraph. I cannot find a way to paste the relevant passage, but you can find it if you look, as it is indented:

http://docs.google.com/viewer?a=v&q=cache:3T6X8775ui0J:www.paed.uscourts.gov/documents/opinions/05D1518P.pdf+gordon+v+griffith&hl=en&gl=us&pid=bl&srcid=ADGEESjPjWm6WlyqqyNRzb1pH3s6EU0BLXqmGG4TUxRFeBuO4f7h-EvYtQCf5d121GH-SbGWb4mCe-KUsBJDk_SYWP964AZJ1PUgQRErfDWVpKg4jrwpL-frGQieBuia2sVqnSS-gZ9L&sig=AHIEtbS__0lwPbYShey9gJ6zcQOXurj4Pw

It looks to me like Rock does not have a case, which does not make Quinn right, but only lawful.  

It was enacted in 1992, which predates the Gordon decision, but the Google doc cited by 1038am doesn't give enough detail as to whether 201-d was rejected.  There are few reported decisions under the statute in McKinneys and I'm not paying Westlaw to look up a case while I procrastinate on other matters.

Gatey--this topic has less to do with Rock than the overall powers of local legislators to muzzle their poorly hired staffers.  Its all about the power, baby.

But, I still do find it ironic that the piece you defend from my derision (which, incidentally, I wrote) has now passed the Rock piece which inspired it on the Hot Topics list.

And to me that's just stupid. 

I assume Hot Topics is based on the number of commenters, or perhaps page views, which is no indication of importance or quality.  Like with eBay, all is takes is 2 or 3 committed crackpots to shoot up the valuation sky high, which is likely what has been done here.  At least be glad someone is reading and/or commenting on your stuff.  Otherwise, publish your musings in a law journal and be guaranteed anonymity AND obscurity.

Even better-go to the beach and post some photos of the bikini clad ne'er do wells.  That will give us all (ok, maybe most of us) a boost.

And I'm not defending any piece from derision.  I think you have me confused with a different droid.

...this piece of crap about whether Rock Hackshaw keeps his part-time job has just passed my serious analysis of the arguments of those who opposed the Monserrate expulsion on the Hot Topics list...And to me that's just stupid.

No, what's stupid is posting an article to a blog, and then criticizing the fact that people have commented on it. If you want to post articles without (dissenting) opinions, close the comments section.

it was just frustration over the fact my more serious pieces don't attract ten percent of these comments.

I'll continue to explore the trivial, because it is fun, but it still confuses me what sells.

I mean, I spent five minutes on the Kevin Parker/Jeopardy piece of crap, and enjoyed every second, but it boggles the mind that that was the one that Azi linked--while the whole world ignored the juicy dirt I uncovered about Joe DioGuardi who could very well end up the Repub candiate for Gillibrand's seat. 

88 F. Supp. 2d 38, *; 2000 U.S. Dist. LEXIS 3329, **

DIANE GORDON, Plaintiff, -against- EDWARD GRIFFITH, individually and in his capacity as New York State Assemblyman to the 40th Assembly District, Defendant.

CV 99-5106

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK

88 F. Supp. 2d 38; 2000 U.S. Dist. LEXIS 3329

March 16, 2000, Decided

SUBSEQUENT HISTORY: [**1] As Corrected March 29, 2000. As Amended May 11, 2000.

DISPOSITION: Motion for dismissal granted. Federal claims brought pursuant to section 1983 of Title 42 alleging constitutional violations dismissed.

CASE SUMMARYPROCEDURAL POSTURE: Plaintiff legislative aide to defendant state legislator brought suit under 42 U.S.C.S. § 1983 and state constitution for wrongful termination in violation of her right to free speech after defendant fired her for making public comments against local police in anti-brutality rally. Defendant moved to dismiss.

OVERVIEW: Defendant state legislator hired plaintiff as his Community Relations Director. Plaintiff later took part in a protest and press conference against "police brutality," expressing her view during the protest and at a related press conference. She did not indicate her views represented defendant's opinions. The following day, she was fired. She sued defendant under 42 U.S.C.S. § 1983, alleging violations of her constitutional rights of speech and association, and violations of the N.Y. Constitution and state labor law. Defendant moved for dismissal. The motion was granted as to the federal claims and jurisdiction over the pendent state claims was declined. Although the court conceded public employees were entitled to a substantial measure of constitutional free speech protection, defendant had a legitimate governmental interest outweighing plaintiff's free speech rights, that being maintaining defendant's clear relationship with his constituents. Defendant's judgment had to be given deference when promoting efficiency of public services.

OUTCOME: Defendant's motion for dismissal was granted as to federal claims, as court found plaintiff was not entitled to constitutional protection from dismissal for participation and speech in protest and press conference. Court declined jurisdiction over pendent state law claims. Defendant's political concerns outweighed his employee's right to free speech.

CORE TERMS: constituent, aide's, balancing, staff, free speech, patronage, voter's, state legislatures, representative government, public concern, government interest, electorate, election, elected officials, accountability, affiliation, electoral, staffing, elected, tenure, legislative process, public employer, republican, assemblies, loyalty, state legislator, public employees, public speech, citations omitted, deference

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Civil Procedure > Pleading & Practice > Defenses, Demurrers & Objections > Motions to Dismiss

Evidence > Judicial Notice > General Overview

Evidence > Procedural Considerations > General Overview

HN1 A court considering a motion to dismiss may also consider matters of which judicial notice may be taken under Fed. R. Evid. 201. More Like This Headnote | Shepardize: Restrict By Headnote

Evidence > Judicial Notice > General Overview

HN2 A judicially noticed fact must be one not subject to reasonable dispute in that it is generally known within the territorial jurisdiction of the trial court. More Like This Headnote

Evidence > Judicial Notice > General Overview

HN3 Judicial notice may be taken at any stage of a proceeding. More Like This Headnote

Constitutional Law > Bill of Rights > Fundamental Freedoms > Freedom of Speech > Scope of Freedom

HN4 Despite its importance, speech is not afforded absolute protection. More Like This Headnote

Constitutional Law > Bill of Rights > Fundamental Freedoms > Freedom of Speech > Public Employees

HN5 The strength of the barrier to interference with free speech rights varies with the asserted government interest in restricting particular speech. Greater consideration is given to the government's interest when it acts as employer rather than as sovereign. More Like This Headnote

Constitutional Law > Bill of Rights > Fundamental Freedoms > Freedom of Speech > Public Employees

Labor & Employment Law > Collective Bargaining & Labor Relations > Discipline, Layoff & Termination

HN6 Even as an employer, the government cannot, in the absence of an appropriate reason, terminate public employees for their speech. Individuals do not surrender all U.S. Const. amend. I protection by joining the ranks of government employment. More Like This Headnote

Constitutional Law > Bill of Rights > Fundamental Freedoms > Freedom of Speech > Public Employees

Labor & Employment Law > Employment Relationships > At-Will Employment > Public Employees

HN7 Public employees are entitled to a substantial measure of asylum from dismissals and threats of dismissal for speaking, including those who would otherwise be terminable at will. More Like This Headnote

Constitutional Law > Bill of Rights > Fundamental Freedoms > Freedom of Speech > Public Employees

HN8 Only where government employees' interests in speaking are outweighed by a substantial and legitimate government interest can they be denied protection from discharge because of their speech. A public employer cannot, with impunity, fire an employee who blew the whistle on other employees' violations of the law on the ground that those disclosures impaired office morale. More Like This Headnote

Constitutional Law > State Autonomy > General Overview

HN9 How power shall be distributed by a state among its governmental organs is commonly, if not always, a question for the state itself. More Like This Headnote

Constitutional Law > State Autonomy > General Overview

HN10 Government accountability is diminished when, due to federal coercion, elected state officials cannot regulate in accordance with the views of the local electorate in matters not pre-empted by federal regulation. A key relationship is that of state voters to their representatives in the legislature. More Like This Headnote

Constitutional Law > Congressional Duties & Powers > Elections > General Overview

Constitutional Law > Equal Protection > Voting Districts & Representatives

HN11 The right to vote freely for the candidate of one's choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government. More Like This Headnote

Constitutional Law > Congressional Duties & Powers > Elections > General Overview

Constitutional Law > Elections, Terms & Voting > Race-Based Voting Restrictions

HN12 Unconstitutional discrimination occurs when the electoral system is arranged in a manner that will consistently degrade a voter's or a group of voters' influence on the political process as a whole. More Like This Headnote

Constitutional Law > Bill of Rights > Fundamental Freedoms > Freedom of Speech > Public Employees

HN13 An extension of free speech tenure to legislative aides in the state assembly would run headlong into the state's authority to prescribe the operation of its legislative body. It would also jeopardize the vital and dynamic relationship that must exist between elected legislators and their constituents. More Like This Headnote

Constitutional Law > Bill of Rights > Fundamental Freedoms > Freedom of Speech > Public Employees

HN14 Maintaining a clear voice between legislators and constituents is a significant government interest, warranting restrictions on the speech of political aides where that speech may create misperceptions about legislators' views. More Like This Headnote | Shepardize: Restrict By Headnote

Constitutional Law > Bill of Rights > Fundamental Freedoms > Freedom of Speech > Public Employees

HN15 The manifest function of the U.S. Const. amend. I in a representative government requires that legislators be given the widest latitude to express their views on issues of policy. More Like This Headnote

Constitutional Law > Bill of Rights > Fundamental Freedoms > Freedom of Speech > Public Employees

HN16 Counterspeech is one remedy legislators have available to correct public misperceptions. More Like This Headnote

Constitutional Law > Bill of Rights > Fundamental Freedoms > Freedom of Speech > Public Employees

Labor & Employment Law > Wrongful Termination > Defenses > General Overview

HN17 When the government is acting in its capacity as employer and not sovereign, and when the asserted interest is as substantial as preserving the integrity of the legislator-citizen relationship, the ability to discharge must be an available remedy. More Like This Headnote

Constitutional Law > Bill of Rights > Fundamental Freedoms > Freedom of Speech > Public Employees

HN18 Greater deference is due to government predictions of harm used to justify restriction of employment speech than to predictions of harm used to justify restrictions on the speech of the public at large. More Like This Headnote

Constitutional Law > Bill of Rights > Fundamental Freedoms > Freedom of Speech > Public Employees

Labor & Employment Law > Wrongful Termination > Defenses > General Overview

HN19 The United States Supreme Court delineated the constitutional restraints that exist on public employers' ability to terminate employees for speech. It established the Pickering balancing test: the public employer's asserted interests are balanced against the speech interests of the employee. More Like This Headnote

Constitutional Law > Bill of Rights > Fundamental Freedoms > Freedom of Speech > Public Employees

Labor & Employment Law > Wrongful Termination > Defenses > General Overview

HN20 The United States Supreme Court generally has restricted the reach of the U.S. Const. amend. I in the public employment context to speech involving issues of public concern. When employee expression cannot be fairly considered as relating to any matter of political, social, or other concern to the community, government officials should enjoy wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the U.S. Const. amend. I. More Like This Headnote

Constitutional Law > Bill of Rights > Fundamental Freedoms > Freedom of Speech > Public Employees

Labor & Employment Law > Wrongful Termination > Defenses > General Overview

HN21 The Government, as an employer, must have wide discretion and control over the management of its personnel and internal affairs. This includes the prerogative to remove employees whose conduct hinders efficient operation and to do so with dispatch. Particularly relevant to this concern is the nature of the employment relationships which would be jeopardized by employee speech: when close working relationships are essential to fulfilling public responsibilities, a wide degree of deference to the employer's judgment is appropriate. The more substantial the public concern underlying the speech, the greater the government's interest must be to justify adverse employment action. More Like This Headnote

Constitutional Law > Bill of Rights > Fundamental Freedoms > Freedom of Speech > Public Employees

Labor & Employment Law > Wrongful Termination > Defenses > General Overview

HN22 The state has an interest as an employer in regulating speech by employees so as to promote the efficiency of public services performed by its employees. The Pickering test requires balancing the interests of the employee, as citizen, in commenting upon matters of public concern and the interests of the state, as an employer, in promoting the efficiency of the public services it performs through its employees. More Like This Headnote

Constitutional Law > Bill of Rights > Fundamental Freedoms > Freedom of Speech > Public Employees

HN23 The Pickering balancing analysis, and the resulting restriction on speech, is justified by government efficiency considerations. The ultimate concern is whether the government's provision of services to the public will be jeopardized by the employee's speech. More Like This Headnote

Constitutional Law > Bill of Rights > Fundamental Freedoms > Freedom of Speech > Public Employees

Labor & Employment Law > Wrongful Termination > Defenses > General Overview

HN24 Speech of a political aide that threatens the public's relationship with or confidence in an elected official will not demonstrably impact efficient administration or provision of government services. More Like This Headnote | Shepardize: Restrict By Headnote

Constitutional Law > Bill of Rights > Fundamental Freedoms > Freedom of Speech > Public Employees

Labor & Employment Law > Wrongful Termination > Defenses > General Overview

HN25 A court must assess the extent of the disruption caused by the employee's speech on workplace discipline, harmony among co-workers, working relationships, and the employee's job performance, and determine whether the disruption justifies the employer's attempt to stifle the employee's expressive activity. More Like This Headnote

Constitutional Law > Bill of Rights > Fundamental Freedoms > Freedom of Speech > Public Employees

Labor & Employment Law > Wrongful Termination > Defenses > General Overview

HN26 A government employer's reasonable predictions of disruption are entitled to substantial weight even when the speech involved is on a matter of public concern. More Like This Headnote

Constitutional Law > Bill of Rights > Fundamental Freedoms > Freedom of Speech > Public Employees

Labor & Employment Law > Wrongful Termination > Defenses > General Overview

HN27 Dismissal of government employees based on political beliefs or association is constitutional so long as party affiliation is an appropriate requirement for the job in question. The ultimate inquiry is whether the position may be appropriately considered political. More Like This Headnote

Constitutional Law > Bill of Rights > Fundamental Freedoms > Freedom of Speech > Public Employees

HN28 Permitting dismissals based on electoral concerns for a narrow category of legislative-related jobs is the appropriate means, particularly in light of the functional limitations on the courts' inquiring into purely political matters, for reconciling the free speech interests of legislative aides with the interest in effective legislative representation. More Like This Headnote

Constitutional Law > Bill of Rights > Fundamental Freedoms > Freedom of Speech > Public Employees

HN29 Legislative aides occupying positions in which their public speech may reasonably be associated with, or mistaken for, that of the legislator's may constitutionally be dismissed for their public speech. More Like This Headnote | Shepardize: Restrict By Headnote

Constitutional Law > Bill of Rights > Fundamental Freedoms > Freedom of Speech > Expressive Conduct

Constitutional Law > Bill of Rights > Fundamental Freedoms > Freedom of Speech > Public Employees

HN30 It is clear that the U.S. Const. amend. I does not provide a right to continued government employment in a capacity that is inconsistent with, and undermined by, one's off-duty expressive conduct. More Like This Headnote

Civil Procedure > Jurisdiction > Jurisdictional Sources > General Overview

Civil Procedure > Jurisdiction > Subject Matter Jurisdiction > Jurisdiction Over Actions > General Overview

Civil Procedure > Jurisdiction > Subject Matter Jurisdiction > Supplemental Jurisdiction > General Overview

HN31 District courts may decline to exercise supplemental jurisdiction over a state law claim if the district court has dismissed all claims over which it has original jurisdiction. More Like This Headnote

COUNSEL: Joseph A. Grob, MOSKOWITZ & BOOK, LLP, New York, NY, for Plaintiff.

Judith T. Kramer, Assistant Attorney General, ATTORNEY GENERAL Eliot Spitzer, NEW YORK STATE DEPARTMENT OF LAW, New York, NY, for Defendant.

JUDGES: JACK B. WEINSTEIN, U.S. Senior District Judge.

OPINION BY: JACK B. WEINSTEIN

OPINION

[*38] MEMORANDUM AND ORDER

JACK B. WEINSTEIN,

Senior District Court Judge:

TABLE OF CONTENTS

[*39] I INTRODUCTION

II FACTS

A. Parties

B. Political Environment

C. Protest and Press Conference

D. Termination

III LAW

A. Free Speech

B. Republican Government

1. Deference to State Legislature

a. New York State Assembly

b. Political Considerations in Legislators' Staffing Decisions

2. Representation

a. Early Theory

b. Modern Practice

i. Political Instruction

ii. Political Accountability

c. Staff Speech and Constituent Relations

i. Staff Speech

ii. Legislators' Counterspeech

iii. Termination

C. Related First Amendment Doctrines

1. Pickering

2. Elrod

3. Legislators' [**2] Concerns

a. Pickering's Balancing

b. Elrod's Job Classification

D. First Amendment and Staff Speech

IV APPLICATION OF LAW TO FACTS

A. Federal Claims

B. State Claims

V CONCLUSION

I. INTRODUCTION

Plaintiff is a legislative aide who spoke out publicly on a controversial matter. Defendant, her boss and a state legislator, believed her comments were inappropriate. He fired her. The parties disagree on whether her right to free speech was violated.

Surprisingly, this appears to be an issue of first impression. In approaching this matter humility of federal judges is mandated by consideration of the needs of our state republican governments and by separation of powers. Judges with lifetime tenure must exercise restraint in overseeing the staffing decisions of legislators who periodically stand for office. This modesty is required even though, as James Madison recognized, our

independent tribunals will consider themselves . . . the guardians of those rights [in the Bill of Rights]; . . . an impenetrable bulwark against every assumption of power in the legislature . . .; they will be naturally led to resist every encroachment of rights [**3] expressly stipulated for in the Constitution by the declaration of rights.

Debates in Congress over Madison's Amendments, 8 June 1789, in John Kaminski & Richard Leffler, The Creation of the Bill of Rights 124-25 (1999).

Plaintiff brought this action pursuant to section 1983 of Title 42 alleging violations of her constitutional rights of speech and association. See 42 U.S.C. § 1983; see also U.S. Const. amend. 1. She has also alleged violations of the New York state [*40] constitution and state labor law. See N.Y. Const. art 1, § 9; N.Y. Labor Law § 201-d(2).

Defendant has moved for dismissal. See Fed.R.Civ.P. 12(b)(6). The motion is granted. Plaintiff has failed to state a claim under the Federal Constitution. As for the pendent state claims, prudential considerations require dismissal.

II. FACTS

The factual allegations in the complaint are assumed to be true. See Brass v. American Film Technologies, Inc., 987 F.2d 142, 150 (2d Cir. 1993).

A. Parties

Defendant Griffith is the New York State Assemblyman for the Fortieth Assembly District, which is located in Brooklyn, New York. He runs for office every two years. [**4] See N.Y. Const. art. 3, § 3.

In January 1997, Griffith hired plaintiff, Diane Gordon, as his Community Relations Director. See Compl. P 7. Gordon worked in Assemblyman Griffith's Brooklyn district office as a salaried employee of the State of New York. See Compl. P 11. Her responsibilities included:

. "Meeting with community leaders such as the presidents of tenant associations and block associations on behalf of Assemblyman Griffith" (Compl. P 10);

. "Meeting with parents' groups, senior citizens, and other constituents on behalf of Assemblyman Griffith" (Compl. P 10); and

. "Attending community meetings and events on behalf of Assemblyman Griffith" (Compl. P 10).

While engaging in these activities, Gordon introduced herself as a representative of Assemblyman Griffith. See Compl. PP 12, 14.

In addition to these official duties, Gordon was required to "engage in partisan political activity" on Assemblyman Griffith's behalf. Compl. P 17. She "assisted political candidates friendly to Assemblyman Griffith during election time," using her personal time, vacation time and sick leave to do so. Compl. P 17. Apart from her responsibilities to defendant, [**5] Gordon was in her own right a delegate to the New York State Democratic Party for the Fortieth Assembly District. See Compl. PP 6, 14. Both the plaintiff and the defendant run on the Democratic ticket.

B. Political Environment

Judicial notice of the political environment is taken. See, e.g., Kramer v. Time Warner Inc., 937 F.2d 767, 773 (2d Cir. 1991) HN1("[A court considering a motion to dismiss] may also consider matters of which judicial notice may be taken under Fed.R.Evid. 201."); Fed.R.Evid. 201(b) HN2("A judicially noticed fact must be one not subject to reasonable dispute in that it is . . . generally known within the territorial jurisdiction of the trial court"); id. 201(f) HN3("Judicial notice may be taken at any stage of the proceeding."); see generally Margaret A. Berger et al., Federal Evidence, § 201, at 201-07 to 97 (Joseph M. McLaughlin ed., 1997); John W. Strong et al., McCormick on Evidence § 329, at 493 (5th ed. 1999).

The backdrop of this case was the politically charged environment in New York City during the Spring of 1999. The City's police force was under intense scrutiny because of several incidents allegedly attributable [**6] to racially motivated "police brutality." In 1997 a Haitian immigrant, Abner Louima, was viciously beaten and sodomized by police officers while in custody. See United States v. Volpe, 78 F. Supp. 2d 76, 79-81 (E.D.N.Y. 1999). Criminal charges were pending against the officers involved in the Louima matter and jury selection was underway. A second incident occurred on February 4, 1999; a 22-year old West-African immigrant, Amadou Dialo, died after suffering multiple bullet wounds in a police shooting. See People of the State of New York v. Boss, 261 A.D.2d 1, 701 N.Y.S.2d 342, 343-47 (1st Dep't 1999).

As plaintiff puts it, these two incidents were "at the very forefront" of public attention. [*41] Pl.'s Res. Mem. at 14. On an almost daily basis, articles and editorials appeared in the leading Metropolitan newspapers. See, e.g., Joseph P. Fried, Graphic Details as Trial Opens in Louima Case, N.Y. Times, May 5, 1999, at A1; Helen Peterson, Jury Chosen; Opening Arguments Expected Tuesday in Police Brutality Case, N.Y. Daily News, May 4, 1999, in dom. sec.; Jodi Wilgoren, Under One Roof, Prayers for Diallo and a Hug for Guiliani, N.Y. Times, April 21, 1999, at [**7] B1; Tom Topousis & Roosevelt Joseph, Black Cop Group Calls for End to Hate Posters, N.Y. Post, April 19, 1999, at 18. A series of protests and marches were held at City Hall and various police stations. And the United States Department of Justice was in the midst of an investigation into possible patterns of police misconduct.

C. Protest and Press Conference

On May 5, 1999, plaintiff Gordon took part in a protest and press conference against "police brutality." Compl. P 20. The demonstration occurred outside of the 75th Police Precinct Stationhouse. This Precinct is within Assemblyman Griffith's legislative district. See Compl. P 20. Because this gathering occurred during a weekday, Gordon took a "personal day off from her job." Compl. PP 19-21.

According to plaintiff Gordon, the events were "organized in response to an incident wherein several officers associated with the 75th Police Precinct were alleged to have beaten a perpetrator even though he had been subdued and was already in handcuffs." Pl.'s Resp. Mem. at 14. Gordon spoke, expressing her view of "police brutality" both during the protest and at a related press conference. See Compl. P 20; Pl.'s Resp. Mem. [**8] at 14. She did not assert that her opinions "represented the comments, beliefs or opinions of Assemblyman Edward Griffith." Compl. P 24.

D. Termination

Upon reporting for work the next day, May 6, 1999, Gordon was summoned to Assemblyman Griffith's office. See Compl. P 26. In the course of a heated exchange, Griffith allegedly stated:

Who do you think you are. I don't care if you are a district leader. You went against the 75th Precinct and the officers there. They are my friends. You are insubordinate.

Compl. P 27.

Assemblyman Griffith then phoned the Precinct, apologized for Gordon's participation in the May 5 protest, and informed a Police Department Inspector that Gordon would be terminated for her participation. See Compl. P 28. Gordon was immediately fired. See Compl. P 29; Pl.'s Resp. Mem. at 14-15.

III LAW

A. Free Speech

Free speech has utilitarian foundations. It "assures the unfettered interchange of ideas for the bringing about of political and social changes desired by the people.'" Connick v. Myers, 461 U.S. 138, 75 L. Ed. 2d 708, 103 S. Ct. 1684 (1983) (quoting Roth v. United States, 354 U.S. 476, 484, 1 L. Ed. 2d 1498, 77 S. Ct. 1304 (1957)). [**9] By allowing the open exchange of ideas and the voicing of criticisms of those in power, free speech protects the heart of the democratic process. See, e.g., Garrison v. Louisiana, 379 U.S. 64, 74-75, 13 L. Ed. 2d 125, 85 S. Ct. 209 (1964) ("Speech concerning public affairs . . . is the essence of self-government."); see generally Alexander Meiklejohn, Free Speech and Its Relation to Self-Government 15-16, 24-27, 39 (1948) ("[Freedom of speech] is a deduction from the basic American agreement that public issues shall be decided by universal suffrage."). Without free speech our system of government might slip into tyranny by, and over, the ignorant. See Cass Sunstein, Free Speech Now, 59 U.Chi. L. Rev. 255, 301, 304-06 (1992) ("Restrictions on political speech have the distinctive feature of impairing the ordinary channels for political [change].").

[*42] Considerations of personal fulfillment also support freedom to speak. See, e.g., Curtis Pub'g Co. v. Butts, 388 U.S. 130, 149, 18 L. Ed. 2d 1094, 87 S. Ct. 1975 (1967) (plurality opinion) ("[Freedom of speech] is as much a guarantee to individuals of their personal right [**10] to make their thoughts public and put them before the community as it is a social necessity required of our political system and an open society." (internal quotation marks and citations omitted)). The right promotes the basic human interests in self-development and self-expression, particularly as those interests serve to further individual participation in our democratic government. See, e.g., David A.J. Richards, Free Speech and Obscenity Law: Toward a Moral Theory of the First Amendment, 123 U.Pa. L. Rev. 45, 62 (1974) ("The significance of free expression rests on the central human capacity to create and exercise symbolic systems, such as speech, writing, pictures, and [music]. . . . In so doing, it nurtures and sustains the self-respect of the mature person."); see generally Martin Redish, The Value of Free Speech, 130 U.Pa. L. Rev. 591, 601, 604 (1982) ("[Political] democracy is merely a means to -- or, in another sense, a logical outgrowth of -- the much broader value of individual self-realization.").

HN4Despite its importance, speech is not afforded absolute protection. See, e.g., United States v. Frame, 885 F.2d 1119, 1133 (3d Cir. 1989) [**11] ("The rights of free speech and association are not absolute."). HN5The strength of the barrier to interference varies with the asserted government interest in restricting particular speech. Greater consideration is "given to the government's interest when it acts as employer rather than as sovereign." Jeffries v. Harleston, 52 F.3d 9, 13 (2d Cir 1995) ("We have given substantial weight to government employers' reasonable predictions of disruption, even when the speech involved is on a matter of public concern, and even though when the government is acting as sovereign our review of legislative predictions of harm is considerably less deferential." (quoting Waters v. Churchill, 511 U.S. 661, 673, 128 L. Ed. 2d 686, 114 S. Ct. 1878 (1994) (plurality opinion))).

HN6Even as an employer, the government cannot, in the absence of an "appropriate reason[]," terminate public employees for their speech. See Elrod v. Burns, 427 U.S. 347, 360, 49 L. Ed. 2d 547, 96 S. Ct. 2673 (1976). Individuals do not surrender all First Amendment protection by joining the ranks of government employment. See United States v. National Treasury Employees Union, 513 U.S. 454, 465, 130 L. Ed. 2d 964, 115 S. Ct. 1003 (1995); [**12] Luck v. Mazzone, 52 F.3d 475, 476 (2d Cir. 1995) (per curiam); Bowen v. Watkins, 669 F.2d 979, 982 (5th Cir. 1982).

HN7Public employees are entitled to a substantial measure of asylum from dismissals and threats of dismissal for speaking, including those who would otherwise be terminable at will. Unfettered discretion to dismiss people employed by the government because of their speech would arm those in power with a "potent means" of suppressing information the public should have. See Pickering v. Bd. of Educ., 391 U.S. 563, 574, 20 L. Ed. 2d 811, 88 S. Ct. 1731 (1968) ("The threat of dismissal from public employment is . . . a potent means of inhibiting speech.").

HN8Only where government employees' interests in speaking are outweighed by a substantial and legitimate government interest can they be denied protection from discharge because of their speech. See, e.g., Dangler v. New York City Off Track Betting Corp., 193 F.3d 130, 140 (2d Cir. 1999) ("[A] public employer cannot, with impunity, fire an employee who 'blew the whistle' on other employees' violations of the law on the ground that those disclosures impaired [**13] office morale[.]").

B. Republican Government

This case raises the delicate issue of whether a state legislator can, consistent with the constitutional guarantee of free speech, discharge a political aide for public [*43] speech in the belief that what was said may interfere with his legislative interests and constituent relations. The answer turns in part upon relevant principles of republican governance as well as the First Amendment. See U.S. Const. art. IV, § 4 (Guarantee Clause); see also U.S. Const. amend. 10 (powers reserved to the states).

Enacted in the aftermath of the Civil War, the Fourteenth Amendment substantially limited the power of the states. See Staub v. City of Baxley, 355 U.S. 313, 321, 2 L. Ed. 2d 302, 78 S. Ct. 277 (1958) (First Amendment rights apply to state action through the Fourteenth Amendment's Due Process Clause). This curbing of authority was accomplished in part through the Due Process Clause of the Fourteenth Amendment which is deemed to incorporate many of the rights protected by the Bill of Rights, including the First Amendment guarantee of free speech. See, e.g., Duncan v. Louisiana, 391 U.S. 145, 148, 20 L. Ed. 2d 491, 88 S. Ct. 1444 (1968) [**14] (enumerating incorporated rights); see generally Jerold H. Israel, Selective Incorporation: Revisited, 71 Geo. L.J. 253 (1982).

Rights incorporated through the Fourteenth Amendment may conflict with state policies that "go to the heart of representative government." Sugarman v. Dougall, 413 U.S. 634, 647, 37 L. Ed. 2d 853, 93 S. Ct. 2842 (1973). Article IV of the Federal Constitution "guarantee[s] to every State in this Union a Republican Form of Government." U.S.Const. art. IV, § 4. This provision recognizes "a State's constitutional responsibility for the establishment and operation of its own [representative] government." Sugarman, 413 U.S. at 648; see generally Deborah Jones Merritt, The Guarantee Clause and State Autonomy: Federalism for a Third Century, 88 Colum. L. Rev. 1 (1988). It embodies two fundamental notions of self-government that are challenged by plaintiff's proposed extension of First Amendment tenure to legislators' staffs.

First, is the notion that the states and their citizens retain authority to prescribe the powers and operations of the principle organs of state government. [**15] See, e.g., Gregory v. Ashcroft, 501 U.S. 452, 115 L. Ed. 2d 410, 111 S. Ct. 2395 (1991) ("The authority of the people of the States to determine the qualifications of their most important government officials . . . is an authority that lies at 'the heart of representative government.'"); Printz v. United States, 521 U.S. 898, 919, 138 L. Ed. 2d 914, 117 S. Ct. 2365 (1997) ("Although the States surrendered many of their powers to the new Federal Government, they retained 'a residuary and inviolable sovereignty.' This is reflected throughout the Constitution's text, [including] . . . the Guarantee Clause, Art. IV, § 4, which 'presupposes the continued existence of the states and . . . those means and instrumentalities which are the creation of their sovereign and reserved rights.'" (internal citations omitted)); see also Highland Farms Dairy v. Agnew, 300 U.S. 608, 81 L. Ed. 835, 57 S. Ct. 549 (1937) HN9("How power shall be distributed by a state among its governmental organs is commonly, if not always, a question for the state itself."); see generally Texas v. White, 74 U.S. (7 Wall.) 700, 19 L. Ed. 227 (1868) ("The [**16] preservation of the States, and the maintenance of their governments, are as much within the design and care of the Constitution as the preservation of the Union and the maintenance of the National government.").

Second, is a concern for relationships between the citizens and officials elected to the core democratic institutions of state government. See, e.g., Printz, 521 U.S. at 920 ("The Constitution . . . contemplates that a State's government will represent and remain accountable to its own citizens."); United States v. Lopez, 514 U.S. 549, 576, 131 L. Ed. 2d 626, 115 S. Ct. 1624 (1995) ("The theory that two governments accord more liberty than one requires for its realization two distinct and discernible lines of political accountability: one between the citizens and the Federal Government; the second between the citizens and the States."); New York v. United [*44] States, 505 U.S. 144, 168, 120 L. Ed. 2d 120, 112 S. Ct. 2408 (1992) HN10("Accountability is . . . diminished when, due to federal coercion, elected state officials cannot regulate in accordance with the views of the local electorate in matters not pre-empted by federal regulation. [**17] "). A key relationship is that of state voters to their representatives in the legislature. See, e.g, Foley v. Connelie, 435 U.S. 291, 296, 55 L. Ed. 2d 287, 98 S. Ct. 1067 (1978) ("[The legislature] represents the choice, and right, of the people to be governed by their citizen peers."); cf. Reynolds v. Sims, 377 U.S. 533, 555, 12 L. Ed. 2d 506, 84 S. Ct. 1362 (1964) HN11("The right to vote freely for the candidate of one's choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government."); Bates v. Jones, 131 F.3d 843, 851 (9th Cir. 1997) (en banc) (O'Scannlain, J., concurring) ("It is axiomatic to say that the right to vote lies at the very core of our system of representative democracy.").

So significant is the preservation of this legislator-citizen relationship that six amendments to the Federal Constitution protect and enhance it. See, e.g., U.S. Const. amend. I ("right to petition the Government for a redress of grievances"); U.S. Const. amend. XIV, § 1 (equal protection); U.S. Const. amend. XV, § 1 (prohibition of denial of franchise based on race); [**18] U.S. Const. amend. XIX, § 1 (prohibition of denial of franchise based on gender); U.S. Const. amend. XXIV, § 1 (prohibition of poll taxes); U.S. Const. amend. XXVI, § 1 (prohibition of denial of franchise to citizens eighteen years of age or older); see also Miller v. Johnson, 515 U.S. 900, 115 S. Ct. 2475, 132 L. Ed. 2d 762 (1995) (racial gerrymandering); Davis v. Bandemer, 478 U.S. 109, 132, 92 L. Ed. 2d 85, 106 S. Ct. 2797 (1986) HN12("Unconstitutional discrimination occurs . . . when the electoral system is arranged in a manner that will consistently degrade a voter's or a group of voters' influence on the political process as a whole."); see generally Vicki C. Jackson, Federalism and the Uses and Limits of Law: Printz and Principle?, 111 Harv. L. Rev. 2180, 2201 (1998) ("The fundamentality of the relationship between constituents and their elected representatives is emphasized by the attention that constitutional amendments have given to expanding the electorate." (footnote omitted)).

HN13An extension of free speech tenure to legislative aides in the New York State Assembly would run headlong into the State's authority to [**19] prescribe the operation of its legislative body. It would also jeopardize the vital and dynamic relationship that must exist between elected legislators and their constituents.

1. Deference to State Legislature

No institution is more essential to a republican government than the legislature. Montesquieu, influenced by the British experience, argued as much in his political writings, and the Founding Fathers largely adopted this view, enshrining it in the Federal Constitution. See generally Oeuvres de Montesquieu, The Spirit of the Laws 154-55 (Thomas Nugent trans., 1949) (1748); see also Anne M. Cohler, Montesquieu's Comparative Politics and the Spirit of American Constitutionalism 153-58 (1988).

Among the governmental institutions in America, "state legislatures are, historically, the fountainhead of representative government in this country." Reynolds, 377 U.S. at 564. As the Supreme Court has pointed out, "with the birth of our National Government, and the adoption and ratification of the Federal Constitution, state legislatures retained a most important place in our Nation's governmental structure." Id. at 564-65 [**20] (emphasis added); see also id. ("[They] have their roots in colonial times, and substantially antedate the creation of our Nation and our Federal Government.").

It would be surprising if James Madison when he authored the Bill of Rights would not have recognized that were unrestrained speech of political aides to interfere with effective representative government, [*45] some reconciliation would be required. Madison was a practical politician as well as a theoretician. See, e.g., Ralph Ketcham, James Madison: A Biography 144-73 (1971). As a student of governments ancient and modern, and a member of the Continental Congress, Virginia's legislature, the Constitutional Convention, and the Congress of the United States (and ultimately as President of the United States), a workable, practically organized, representative legislature was central to his view of constitutional government.

a. New York State Assembly

The New York Assembly is by design a "'political' branch of [New York's] government." People of the State of New York v. Ohrenstein, 77 N.Y.2d 38, 47, 563 N.Y.S.2d 744, 565 N.E.2d 493 (1990); see also N.Y. Const. art. III; see generally Samuel [**21] C. Patterson, Ronald D. Hedlund, & G. Robert Boynton, Representatives and Represented: Bases for Public Support for the American Legislatures 21-55 (1975). With members of the Assembly compelled to stand for re-election every two years, a sharp line cannot be drawn between activities that constitute governing and those that qualify as politicking. See generally Anthony King, Running Scared: Why America's Politicians Campaign Too Much and Govern Too Little 73-91 (1997); Rita Kirk Whillock, Political Empiricism: Communication Strategies in State and Regional Elections 19-35 (1991). Politics and political considerations are inseparable from legislative activities. See generally Timothy E. Cook, Making Laws & Making News 103-17 (1989); Belle Zeller, Pressure Politics in New York 1-7 (1937).

b. Political Considerations in Legislators' Staffing Decisions

The state legislature has authorized each member to hire a number of legislative aides. These assistants occupy positions that are necessarily political in nature. See Ohrenstein, 77 N.Y.2d at 47 ("Although this distinction may be relevant to other State employees, the line between political [**22] and governmental activities is not so easily drawn in cases dealing with legislators and their assistants."); id. ("Although [some] activities may be fairly characterized as political, as opposed to governmental, they are considered an inherent part of the job of an elected representative and thus perfectly legitimate acts for a legislator or legislative assistant to perform." (emphasis added)); see also Alan Rosenthal, Legislative Life: People, Process, and Performance in the States 210 (1981) (legislative aides handle "political" work); The Legislative Process in the United States, supra, at 234 ("Some staff operations are almost exclusively 'political,' and require personnel with political expertise."). Loyalty to the advancement of legislators' political agendas and fortunes is the hallmark of employment in these positions. See Robert H. Salisbury & Kenneth A. Shepsle, Congressman as Enterprise, 6 Legis. Studies Q. 559, 573 (1981) ("[Legislators] work[] with and through associated staff personnel who share an identity and a set of goals not because of the payroll they are on, the office they work in, or the tasks they perform, [**23] but because of their loyalty and commitment to the particular member." (emphases added)).

Because positions as legislative assistants are inherently political, considerations of loyalty to the views and agenda of the elected legislator are relevant in staffing. When it authorized these positions, the Assembly necessarily understood such considerations would factor into staffing decisions.

An extension of full First Amendment tenure to legislative aide's might well impede legislators' authority to base staffing decisions on appropriate political considerations. See, e.g., Sydney H. Schanberg, Gas Tax Cash and Re-Electing a Governor, Newsday, Dec. 3, 1987 (New York State Senate aide forced to resign by State Senator after making statements linking Governor Cuomo to organized crime); see also Josh Zimmer, FDLE Ends Look at [*46] Harsh Letters, St. Petersburg Times, Nov. 24, 1999 (Florida State House aide forced to resign by House Speaker after sending hostile letters on his own stationary and on his own time to various state leaders).

The centrality of these supportive positions to the overall operation of the legislature, as well as the need to allow political considerations [**24] as criteria for some employment, counsels against extending First Amendment tenure to members of a legislator's staff. See, e.g., Gregory, 501 U.S. at 463 ("The people of the States [retain the authority] to determine the qualifications of their most important government officials. It is an authority that lies at 'the heart of representative government.' It is a power reserved to the States under the Tenth Amendment and guaranteed them by that provision of the Constitution under which the United States 'guarantee[s] to every State in this Union a Republican Form of Government.'" (internal citations omitted)).

Questions of sound and fair employment practices are distinguishable from issues of constitutional law. Termination is often a counterproductive method of employee management. See, e.g, Lewis v. Cowen, 165 F.3d 154, 169 (2d Cir. 1999) (concurrence). Some tolerance for differing views is desirable in any government office, including those of state legislators. Id. Importing sophisticated constitutional rules of free speech into the politically sensitive staffing decisions state legislators must make, however, is not the appropriate means [**25] to office equity and efficiency.

2. Representation

a. Early Theory

From the outset the American experience has been marked by concerns with the representation of the citizenry in government. The Revolution itself "was framed in terms of representational theory," particularly the controversy over the "'virtual' representation" of the colonists in the British Parliament. Malcolm E. Jewell & Samuel C. Patterson, The Legislative Process in the United States 38 (1966) [hereinafter Legislative Process in the United States]. Colonial representation in Parliament was highly attenuated with the colonists having no say over who represented their interests. Parliamentary leaders argued nonetheless that the colonists "had 'an equal share in the general representation of the Commons of Great Britain . . . whether they had or had not particular representatives there.'" Id. at 38 (quoting George Grenville) (citations omitted); see also Hanna Fenichel Pitkin, The Concept of Representation 168-89 (1967) (Edmund Burke's theory of representation: "a representative is not to consult the wishes of his constituents; government is not to be conducted according to anyone's wishes. [**26] "; representation is "something Parliament does for a nation as a whole. The duty of each member is to reason and judge about the good of the whole; the selfish wishes of parts of the nation, the wills of individual voters have nothing to do with it.").

Borrowing from the theories of John Locke, the Founders believed that a true representative government reserves to the people the choice of their own representatives. See, e.g., John Locke, Second Treatise of Government § 222 (C.B. Macpherson ed., 1980) (6th ed. London 1764); see also Pitkin, supra, at 190-208 ("In America, representation was clearly to be of persons, and interests became an inevitable evil, to be tamed by a well-constructed government."); see also The Federalist No. 10, at 41 (J. Madison) (W.R. Brock ed., 1961).

They believed representatives should -- at fixed intervals -- be required to gain approval of the people. To ensure support, the representatives could be expected to remain responsive to the views of the people between elections. See generally Edmund S. Morgan, Inventing the People: The Rise of Popular Sovereignty in England and America 215-17 (1988); John Phillip Reid, The Concept [**27] of Representation in the Age of the American Revolution 85-95 (1989); Judith N. Shklar, [*47] American Citizenship: The Quest for Inclusion 27 (1991).

The nature of this co-dependence was captured by James Madison in Federalist No. 37 when he wrote: "The genius of republican liberty seems to demand on one side not only that all power should be derived from the people, but that those entrusted with it should be kept in dependence on the people, by a short duration of their appointments . . . ." Federalist No. 37, at 234 (J. Madison) (W.R. Brock ed., 1961); see Federalist No. 22, at 110 (A. Hamilton) (W.R. Brock ed., 1961) ("The elective mode of obtaining rulers is the characteristic policy of republican government."; "The fabric of American empire ought to rest on the solid basis of the consent of the People." (emphasis in original)). In fact, one-year terms for state legislators were employed during the period of Confederation as a means of ensuring the fidelity of legislators to voters' wishes. See Brendan Barnicle, Comment, Congressional Term Limits: Unconstitutional by Initiative, 67 Wash. L. Rev. 415, 416-17 (1992) ("[The early state constitutions] [**28] . . . imposed annual elections, and attempted to tie representatives closely to their constituents."); Nathan Alexander Sales, Note, Classical Republicanism and the Fifth Amendment's "Public Use" Requirement, 49 Duke L.J. 339, 353-54 (1999) ("In order to ensure the parity of interests between citizen and representative that was necessary for effective representation, states . . . typically provided for frequent elections." (footnotes omitted)); see also Gordon S. Wood, The Creation of the American Republic, 1776-1787, at 166 (1969) (all states except South Carolina provided for annual elections of legislators); see generally H. Trevor Colbourn, The Lamp of Experience: Whig History and the Intellectual Origins of the American Revolution 191 (1965).

b. Modern Practice

Since the time of the Founding, American notions of representation have continued to evolve, strengthening the essential nexus between voters and their legislators. See, e.g., Hanna Fenichel Pitkin, The Concept of Representation, passim (1967); see also Lisa O. Monaco, Comment, Give the People What They Want: The Failure of "Responsive" Lawmaking, 3 U. Chi. L. Sch. [**29] Roundtable 735, 740 (1996); see generally Richard F. Fenno, Jr., Home Style: House Members in Their Districts, passim (1978). The modern role of legislators centers less on the formal aspects of representing -- e.g., legislating and policymaking -- and more on maintaining the relationship between legislators and their constituents. This shift is primarily a result of voters' demands for assistance in dealing with a large bureaucratic government. See Malcolm E. Jewell, Representation in State Legislatures 10-18 (1982) [hereinafter Representation in State Legislatures] (the meaning of modern representation); cf. Roger H. Davidson & Walter J. Oleszek, Congress and Its Members 5 (6th ed. 1998) ("Studies suggest that public officials and citizens view the twin functions of elected assemblies -- lawmaking and representing -- as separate, definable tasks.").

Essential to the success of modern representation is the maintenance of an on-going dialogue between legislators and their constituents throughout the term of office. See Davidson & Oleszek, supra, at 8 ("From colonial times to the present, this country's voters have tended to prefer their lawmakers [**30] to be delegates, who listen carefully to constituents and follow their guidance."). This conversation operates to inform legislators of the views of voters and to ensure political accountability. It also provides a basis for intervention by legislators in the operation of the executive branch to protect the rights and interests of constituents. See United States v. State of Vermont Agency of Natural Resources, 162 F.3d 195, 225 (1998) (dissent) ("[Legislators], in their individual capacity and as members of [legislative] committees, frequently intervene on behalf of their . . . home communities to influence the policy positions and particular decisions of administrative agencies charged [*48] with implementing . . . statutes." (citations omitted)), cert. granted, 119 S. Ct. 2391 (1999).

i. Political Instruction

"Modern electorates, motivated by self-interest and schooled in democratic norms, [seem to] prefer instructed delegates -- lawmakers who follow [their] instructions rather than exercise independent judgments." Davidson & Oleszek, surpa, at 133; see also William J. Keefe & Morris S. Ogul, The American Legislative Process: Congress [**31] and the States 30-31 (9th ed. 1997) ("Constituents expect their representatives to pay close attention to them and to their districts. . . . The public's preferences are clear. Voters want their legislators to concentrate their attention on representing them and their districts."). Unclogged avenues of communication between constituents and legislators is essential to ensure that "legislators become thoroughly familiar with the needs and interests of the district, a requirement that cannot be met by waiting passively for mail or telephone calls." Representation in State Legislatures, supra, at 77. New modes of communication resulting from the on-going technological revolution -- such as electronic mail and the internet -- are enhancing the centrality of communication with constituents.

Providing voters and legislators with an outlet to express their views and concerns through legislator-constituent dialogue also reinforces democratic self-governance by promoting citizen participation. See Robert W. Bennett, Democracy as Meaningful Conversation, 14 Const. Comment. 481, 500 (1997) ("The democratic conversation seems to be everywhere in the United States."); [**32] id. at 501 ("The engagement of the electorate in the democratic conversation is an important cause of the stability of democracies, or at least of the United States' variant on the theme, a cause decidedly more important than the sense of involvement in majoritarian 'self-government' that comes from periodic candidate elections."). But cf. Michael J. Sandel, Democracy's Discontent: America in Search of a Public Philosophy, 85 Geo. L.J. 2073, 2073 (1997) ("Most Americans do not believe they have much say in how they are governed and do not trust government to do the right thing.").

ii Political Accountability

Elected representatives are expected to account for their views and votes to constituents on a regular basis. See Rosenthal, supra, at 102 ("[Legislators must] explain their activities -- describing, interpreting, and justifying their behavior and their policy positions."); Davidson & Oleszek, supra, 134 (Legislators "will be called upon to explain their choices to constituents -- no matter how many or how few people truly care about the matter."). As one commentator put it:

The process of communication is an instrument of accountability. [**33] By reporting his activities and votes . . ., the legislator is not only gaining publicity and building support but is also explaining what he has done and why. By making himself accessible to requests and questions from constituents, the legislator is practicing accountability. Communication is not only the instrument of accountability, but it is one of the responsibilities of the legislator. Constituents expect the legislator to be accessible, as well as to vote in their interest.

Representation in State Legislatures, supra, at 122; see id. ("'The representative must act in such a way that there is no conflict [between the representative and the represented], or if it occurs an explanation is called for. He must not be found persistently at odds with the wishes of the represented without good reason in terms of their interest, without a good explanation of why their views are not in accord with their interest.' . . . Nearly everything he does to win and hold support -- allocating, reaching, presenting, responding, communicating, explaining, assuring -- involves representation. It is a view of representation as politics[.]"). The frequent use of mailings [**34] and questionaires by legislators to all households in their district [*49] is but one means of keeping up the legislators' end of the dialogue.

To be sure, all constituents will not hold the official accountable for every view expressed or vote cast. Nonetheless, most issues are at least of some concern to particular interests or segments of the constituency. The legislator, as the voters' agent in government, will likely be called to account for most policy views and legislative actions.

It is often the organized groups in a district, more than individual constituents, who want an explanation of the legislator's [actions]. It is always important for legislators to stay in touch with the organized groups in the district, and explaining votes is one part of that process.

Malcolm E. Jewell & Penny M. Miller, The Kentucky Legislature: Two Decades of Change 86 (1988) [hereinafter The Kentucky Legislature]; see also Davidson & Oleszek, supra, at 109 ("Issues motivate that segment of voters who are opinion leaders, who can lend or withhold support far beyond their single vote."); Rosenthal, supra, at 98 ("Well-organized groups in the district can make even [**35] the less salient issue important, simply because they care intensely about something. A group with membership and support in a member's district has electoral potential.").

Through communication and coordination with constituents, legislators are able to avoid loss of support and to gain public trust that may translate into influence with constituents on future issues. See Bruce E. Cain, John A. Ferejohn, & Morris P. Fiorina, The Personal Vote: Constituency Service and Electoral Independence 120 (1987); Jurgen Heideking, The Pattern of American Modernity, 129 Daedalus 219, 229 (2000) (describing James Madison's view of public opinion: "'As there are cases where the public opinion must be obeyed by the Government, so there are cases, where, not being fixed, it may be influenced by the Government.' The goal was a government 'deriving its energy from the will of the society, and operating by the reason of its measures, on the understanding and interest of the society.'" (citations omitted)); cf. Rosenthal, supra, at 101 ("What seems to matter more than policy linkages . . . is that people have a sense that their representative is one of them, that he or she is not [**36] apart from them.").

A close continuing liaison provides legislators with the maneuvering room to take a position on a future issue contrary to strongly held views in the district without risking repudiation at the polls. See id. at 105; see also Glenn R. Parker & Suzanne L. Parker, Correlates and Effects of Attention to Districts by U.S. House Members, in New Perspectives on the House of Representatives 53, 56 (Robert L. Peabody & Nelson W. Polsby eds., 1992) ("district attentiveness may be one way in which the representative secures policy leeway in Congress: the member cultivates the district and by doing so increases citizen trust."). Squandering of that trust by misrepresentation or misperception of a legislator's views, resulting in unnecessary conflict with voters, is to be avoided. See Malcolm E. Jewell & Samuel C. Patterson, The Legislative Process in the United States 12 (1966) [hereinafter The Legislative Process in the United States] ("Groups that are dissatisfied with the way in which conflicts have been resolved [in the political system] may become alienated from the system and unwilling to accept the political decisions [**37] emanating from it.").

In short, legislators must "explain their views and actions to" constituents and this requires an effective, undistorted "two-way process" of communication. Representation in State Legislatures, supra, at 18.

c. Staff Speech and Constituent Relations

HN14Maintaining a clear voice between legislators and constituents is a significant government interest, warranting restrictions on the speech of political aides where that speech may create misperceptions about legislators' views. See Representation in State Legislatures, supra, at 18 (effective two-way communication between constituents [*50] and elected officials is an "essential part" of representation); cf. Bond v. Floyd, 385 U.S. 116, 135-36, 17 L. Ed. 2d 235, 87 S. Ct. 339 (1966) ("HN15The manifest function of the First Amendment in a representative government requires that legislators be given the widest latitude to express their views on issues of policy."); cf. generally Rankin v. McPherson, 483 U.S. 378, 400, 97 L. Ed. 2d 315, 107 S. Ct. 2891 (1987) (Scalia, J., dissenting) ("A public employer has a strong interest in preserving its reputation with the public.").

i. Staff [**38] Speech

Controversial public statements of legislative staffers can distort the channels of communication between legislators and constituents. Elected officials -- due to time constraints and the pressures of the office -- must often rely on their aides as surrogates speaking on their behalf. See, e.g., Representation in State Legislatures, supra, at 186 ("One reason legislators want personal staff is because they lack the time to fulfill the demands made on them."); The Kentucky Legislature, supra, at 94 (personal staff are used for constituency communication by legislators in many states); William J. Keefe & Morris S. Ogul, The American Legislative Process: Congress and the States 36 (9th ed. 1997) (personal stafffers are "an important element in each [legislator's] design for increasing visibility and support"); The Legislative Process in the United States, supra, at 236 ("Staff serve as an important communications link between the [legislator] . . . and constituents.").

The close affiliation of aides and the legislators they serve generates a strong public perception of association between the two. This naturally leads the public to [**39] assume their views are identical.

As a result, what legislative aides say may reasonably be understood by voters as an expression of the legislator's position. Even where a legislative assistant affirmatively states that a particular statement is made in a personal capacity, constituents may nonetheless perceive that the views of the aide were sanctioned by the legislator. Cf. Nixon v. Shrink Missouri Government PAC, 120 S. Ct. 897, 908, 145 L. Ed. 2d 886 (2000) (public perception of corrupting influence of campaign contributions overrides First Amendment speech rights in making campaign contributions); Buckley v. Valeo, 424 U.S. 1, 30, 46 L. Ed. 2d 659, 96 S. Ct. 612 (1976) (per curiam) (interest "in safeguarding against the appearance of impropriety" is a substantial basis for curtailing First Amendment speech rights in making campaign contributions (emphasis added)). The result is that legislators may mistakenly be held accountable for the speech of their political staffers.

ii Legislators' Counterspeech

HN16Counterspeech is one remedy legislators have available to correct such misperceptions. Cf. New York Times v. Sullivan, 376 U.S. 254, 11 L. Ed. 2d 686, 84 S. Ct. 710 (1964) [**40] (public officials enjoy access to the channels of communication to counteract false statements).

Practical considerations counsel against forcing legislators to rely on denials as their only remedy, however. First, state legislators operate at the heart of the state government, exercising the broadest powers that can be delegated by the people. Requiring them to devote their time and resources to disavowing and disassociating themselves from an aide's potentially damaging public comments will impede performance of legislative duties and tax already limited resources. See generally Fenno, supra, at 34 ("Time is a House member's scarcest and most precious political resource. If there is an exemplary congressional complaint, surely 'there isn't enough time' must be it. . . . [Representatives] must choose and trade off."); cf. generally Thomas E. Cavanagh, The Two Arenas of Congress, in The House at Work 55, 71 (Joseph Cooper & G. Calvin Mackenzie eds., 1981) [hereinafter The House at Work] ("The effectiveness of congressional performance is a direct consequence of the members' allocation of their limited resources of time and staff."). Such a drain [*51] on legislators' [**41] resources is particularly undesirable since the employment of legislative assistants in the first place is largely a response to the growing pressures, responsibilities and time constraints facing state representatives. See, e.g., Representation in State Legislatures, supra, at 182-83 ("State legislatures have been in a stage of transition. Twenty years ago, in all but the largest states, the legislatures -- and their members -- were almost invisible, meeting for a few months every two years and then disappearing from public view. . . . The longer sessions, greater interim activity, increased staffing, and other trends have enhanced the importance and increased the visible activity of the legislature as an institution."); Harrison W. Fox, Jr. & Susan Webb Hammond, Congressional Staffs: The Invisible Force in American Lawmaking 88 (1977) ("Increases in legislative workload and constituent demands in the last twenty years have been partially responsible for the growing reliance on staff."); see also id. at 188 ("The demands on state legislatures are likely to become greater and more difficult to reconcile as issues become more complex. This means [**42] that individual legislators will face more difficult pressures at the same time they are acquiring more assistance and resources and the job of being a legislator is gaining more importance."); Rosenthal, supra, at 106 ("[District staff are intended] to 'reflect into the community the presence of the legislator,' even though he may be absent from the district for months at a time." (quoting the California District Office Manual, March 1977)).

Second, even when the legislator disavows the aide's public comments, constituent pressure may nonetheless build for dismissal. See also Michael Wines, So Many Minds To Be Changed, So Little Time, N.Y. Times, September 11, 1994, § 4, at 1 ("Sacking the staff is Washington's folk remedy for the pain of inflamed public opinion."); cf. Susan Webb Hammond, The Management of Legislative Offices, in The House at Work, supra, at 184 ("The legislative office units are political entities. Members must face election every two years. The concerns and needs of their constituents are of continuing concern. They must respond to their electorates . . . . Loyalty, trust, and the accountability of aides to the principal employer [**43] are key elements."). The inability of legislators to respond to this pressure may undermine their effectiveness in other legislative activities because of reduced public support and confidence.

iii. Termination

HN17When, as here, the government is acting in its capacity as employer and not sovereign, and when the asserted interest is as substantial as preserving the integrity of the legislator-citizen relationship, the ability to discharge must be an available remedy. See Waters, 511 U.S. at 673 HN18("Greater deference [is due] to government predictions of harm used to justify restriction of employment speech than to predictions of harm used to justify restrictions on the speech of the public at large."); cf. Nixon v. Shrink Missouri Government PAC, 145 L. Ed. 2d 886, 120 S. Ct. 897, 911 (2000) (Breyer, J.) (compelling government interest in preserving integrity of electoral process); Burson v. Freeman, 504 U.S. 191 208-09, 119 L. Ed. 2d 5, 112 S. Ct. 1846 (plurality opinion) (same); New York Times, 376 U.S. at 254 (challenged speech restriction imposed in government's capacity as sovereign, not employer; asserted interest [**44] was protection of public official's reputation, not protection of legislator-constituent relationship); Klug v. Chicago Sch. Bd. of Trustees, 197 F.3d 853, 858 (7th Cir. 1999) (broader speech restrictions allowed when imposed by government as employer and not as sovereign).

The authority to discharge close political aides for public speech is supported by several practical considerations. First, only a small fraction of state employees will hold jobs for which their speech can burden the representative process. Second, those who accept these jobs do so [*52] with the understanding that their personal conduct -- including their speech which threatens the political interests or constituent relations of the elected official -- can be a legitimate basis for dismissal. See, e.g., Dangler v. New York City Off Track Betting Corp., 193 F.3d 130, 139 (2d Cir. 1999) ("The burden of caution employees bear with respect to the words they speak will vary with the extent of authority and public accountability the employee's role entails." (quoting Rankin v. McPherson, 483 U.S. 378, 390, 97 L. Ed. 2d 315, 107 S. Ct. 2891 (1987))).

On balance, the negligible [**45] chilling effect on free speech which may result by permitting legislators to dismiss political aides for their public comments is substantially outweighed by potential benefits in the effective operation of the state legislature and in the representative process generally. To accord non-clerical legislative aides holding politically sensitive positions First Amendment tenure for their public speech is unwarranted.

C. Related First Amendment Doctrines

Plaintiff and defendant have argued that the constitutionality of plaintiff's dismissal is governed by two existing strands of First Amendment jurisprudence.

The first set of cases governs a public employers ability to take an adverse employment action against a public employee for speaking out on matters of public concern. See, e.g., Rankin v. McPherson, 483 U.S. 378, 97 L. Ed. 2d 315, 107 S. Ct. 2891 (1987); Connick v. Myers, 461 U.S. 138, 75 L. Ed. 2d 708, 103 S. Ct. 1684 (1983); Pickering v. Bd. of Ed., 391 U.S. 563, 20 L. Ed. 2d 811, 88 S. Ct. 1731 (1968). The second set involves a public employer's ability to terminate a public employee based on political affiliation -- so-called [**46] "patronage" dismissals. See, e.g., Rutan v. Republican Party of Illinois, 497 U.S. 62, 111 L. Ed. 2d 52, 110 S. Ct. 2729 (1990); Branti v. Finkel, 445 U.S. 507, 63 L. Ed. 2d 574, 100 S. Ct. 1287 (1980); Elrod v. Burns, 427 U.S. 347, 49 L. Ed. 2d 547, 96 S. Ct. 2673 (1976) (plurality opinion).

Although the distinction between these two lines is "frequently treated as one between political patronage and employee speech (or, alternatively, political affiliation and political expression), the line is not so stark." Heideman v. Wirsing, 7 F.3d 659, 662 (7th Cir. 1993); see generally Craig D. Singer, Conduct and Belief: Public Employees' First Amendment Rights to Free Expression and Political Affiliation, 59 U. Chi. L. Rev. 897 (1992). Rather, the two strands are more appropriately distinguished by "the manner in which the exercise of an employee's public speech may impede" the proper functioning of the government. Heideman, 7 F.3d at 662. But see generally Lewis v. Cowen, 165 F.3d 154, 162 (2d Cir. 1999) ("Where the discharge is based on discrete incidents of speech [**47] rather than political affiliation, Pickering, not Branti and Elrod, provides the appropriate framework of analysis.").

1. Pickering

In Pickering v. Bd. of Education, HN19the Supreme Court delineated the constitutional restraints that exist on public employers ability to terminate employees for speech. It established the Pickering balancing test: the public employer's asserted interests are balanced against the speech interests of the employee.

Pickering itself involved the rather innocuous situation of a public school teacher who was terminated for publishing a letter in the local newspaper criticizing the school board and local superintendent's allocation of financial resources between educational and athletic programs. See 391 U.S. at 566. Observing that the teacher's comments did not impede the "proper performance of his daily duties in the classroom" or "the regular operation of the schools generally," id. at 572-73, the Court held that the separation from public employment unconstitutionally infringed free speech, see id. at 574. The Court's reasoning and holding turned in substantial measure on the looseness of the ties of personal [*53] loyalty between [**48] teachers and the Board. A teachers "employment relationships with the Board and, to a somewhat lesser extent, with the superintendent are not the kind of close working relationships for which it can persuasively be claimed that personal loyalty and confidence are necessary to their proper functioning." Id. at 570. (emphases added). It was appropriate for the teacher to speak out while school policy was being made; failing to carry out policy once it was settled would have been a different matter.

Since Pickering, the courts have refined the balancing test. HN20In Connick v. Myers, the Supreme Court generally restricted the reach of the First Amendment in the public employment context to speech involving issues of public concern. 461 U.S. at 146. "When employee expression cannot be fairly considered as relating to any matter of political, social, or other concern to the community, government officials should enjoy wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the First Amendment." Id.

Connick emphasized that the purpose of the Pickering balancing test is to ensure the "effective [**49] and efficient fulfillment of [the government's] responsibilities to the public." Id. at 150. "To this end, HN21the Government, as an employer, must have wide discretion and control over the management of its personnel and internal affairs. This includes the prerogative to remove employees whose conduct hinders efficient operation and to do so with dispatch." Id. at 151. Particularly relevant to this concern is the nature of the employment relationships which would be jeopardized by the speech: "when close working relationships are essential to fulfilling public responsibilities, a wide degree of deference to the employer's judgment is appropriate." Id. at 151-52. The Court in Connick cautioned that the more substantial the public concern underlying the speech, the greater the government's interest must be to justify adverse employment action. See id. at 152.

In Rankin v. McPherson, the Supreme Court reiterated that Pickering balancing requires a consideration of the internal administrative and staffing problems which may impede the government's ability to efficiently carry out public services. 483 U.S. 378, 107 S. Ct. 2891, 97 L. Ed. 2d 315 (1987). [**50]

We have previously recognized as pertinent considerations [in the Pickering balancing] whether the statement impairs discipline by superiors or harmony among co-workers, has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, or impedes the performance of the speaker's duties or interferes with the regular operation of the enterprise. These considerations, and indeed the very nature of the balancing test, make apparent that the state interest element of the test focuses on the effective functioning of the public employer's enterprise.

Id. at 388 (emphasis added).

The thrust of the government's interest justifying the balancing is efficient delivery of government services which may be jeopardized by administrative and staffing problems arising from public speech. See Connick, 461 U.S. at 150 ("The Pickering balance requires full consideration of the government's interest in the effective and efficient fulfillment of its responsibilities to the public." (emphasis added)); see, e.g., Morris v. Lindau, 196 F.3d 102, 109 (2d Cir. 1999) ("[The Court [**51] in Pickering] recognized that HN22the state has an interest as an employer in regulating speech by employees so as to promote the efficiency of public services performed by its employees."); Scott v. Meyers, 191 F.3d 82, 86-87 (2d Cir. 1999) ("[The Pickering] test requires us to balance 'the interests of the [employee], as citizen, in commenting upon matters of public concern and the interests of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.'"); [*54] McCullough v. Wyandanch Union Free Sch. Dist., 187 F.3d 272, 278-79 (2d Cir. 1999) ("The competing interests that must be balanced are the interests of the employee, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees."); Jones v. Collins, 132 F.3d 1048, 1053 (5th Cir. 1998) ("The employee's interest in "commenting upon matters of public concern" must outweigh the public employer's interest "in promoting the efficiency of the public services it performs through its employees."). [**52]

2. Elrod

In Elrod v. Burns, the Supreme Court addressed the constitutionality of patronage dismissals. 427 U.S. 347, 96 S. Ct. 2673, 49 L. Ed. 2d 547 (1976). It identified several constitutional limitations warranting heightened scrutiny of political patronage. First was the restraint it places on the First Amendment "freedoms of belief and association." Id. at 355. The threat of dismissal from public employment for exercising these First Amendment rights has a potent chilling effect. "An individual who is a member of the out-party maintains affiliation with his own party at the risk of losing his job. He works for the election of his party's candidates and espouses its policies at the same risk." Id.

Political patronage discharges also pose a threat to the "free functioning of the electoral process." Id. Taking a practical view of the political process, the Court stated that political patronage can be abused by the political party or coalition in control of the government "to starve political opposition by commanding partisan support, financial and otherwise." Id.

Conditioning public employment on partisan support prevents support of competing political [**53] interests. Existing employees are deterred from such support, as well as the multitude seeking jobs. . . . Patronage thus tips the electoral process in favor of the incumbent party, and where the practice's scope is substantial relative to the size of the electorate, the impact on the process can be significant.

Id.

In contrast to the reasoning underlying the Pickering line of cases, the Court rejected government efficiency rationales for political patronage. The petitioner, a county government, advanced the argument that "employees of political persuasions not the same as that of the party in control of public office will not have the incentive to work effectively and may even be motivated to subvert the incumbent administration's efforts to govern effectively." Id. at 364. Refusing to accept this argument, the Court reasoned that "it is doubtful that the mere difference of political persuasion motivates poor performance" and that, therefore, "mere political association is an inadequate basis for imputing disposition to ill-willed conduct." Id.

Although rejecting efficiency as a basis for patronage dismissals, the Court conceded that political [**54] loyalty grounded in a concern for responsive and effective "representative government" could be a basis for "a narrow category of patronage dismissals." Id. at 367 ("A second interest advanced in support of patronage is the need for political loyalty of employees, not to the end that effectiveness and efficiency be insured, but to the end that representative government not be undercut by tactics obstructing the implementation of policies of the new administration, policies presumably sanctioned by the electorate." (emphasis added)). The Court concluded that "limiting patronage dismissals to policymaking positions is sufficient to achieve this governmental end." Id.; see, e.g., Flynn v. City of Boston, 140 F.3d 42, 46 (1st Cir. 1998) ("To implement their mandates, elected officials need a cadre of agency leaders and top subordinates responsive to the elected officials' goals. A rule effectively preventing the replacement of senior officials by new administrations would be a very serious step. [*55] A legislature can provide such tenure, but the Constitution does not command it."); Roman-Melendez v. Inclan, 826 F.2d 130, 132 (1st Cir. 1987) [**55] ("Representative government needs a certain amount of leeway for partisan selection of agents in order to work.").

Branti v. Finkel tightened the means-ends fit for patronage dismissals. 445 U.S. 507, 518, 100 S. Ct. 1287, 63 L. Ed. 2d 574 (1980). It declared that, "under some circumstances, a position may be appropriately considered political even though it is neither confidential nor policymaking in character," and went on to acknowledge that it "is equally clear that party affiliation is not necessarily relevant to every policymaking or confidential position." Id. The Court shifted from an emphasis on whether the employee was a "policymaker" to "whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved." Id. at 518.

3. Legislators' Concerns

While the present case does not fit comfortably within either of these free speech lines as they are currently fashioned, Elrod's categorical approach rather than Pickering's balancing seems more appropriate to control dismissals of legislators' political aides.

a. Pickering's Balancing

HN23The Pickering balancing analysis -- and the resulting [**56] restriction on speech -- is justified by government efficiency considerations. As already noted, the ultimate concern is whether the government's provision of services to the public will be jeopardized by the speech. See, e.g., Swineford v. Snyder County, 15 F.3d 1258, 1270 (3d. Cir. 1994) ("[Pickering test] requires balancing the public employee's interests in commenting on matters of public concern against the public employer's interests in efficiency.").

Belief that constituent relations of a legislator may be jeopardized presents different considerations. HN24Speech of a political aide that threatens the public's relationship with or confidence in an elected official will not demonstrably impact efficient administration or provision of government services. Cf. People of the State of New York v. Ohrenstein, 77 N.Y.2d 38, 46, 563 N.Y.S.2d 744, 565 N.E.2d 493 (1990) (noting legislative aides stand apart from "state employees generally" because of "the nature of the Legislature's function"). Thus, the underlying interest justifying the Pickering analysis is not at issue when a legislator takes an adverse employment action against a political [**57] assistant whose public comments threaten political interests or constituent relations.

Moreover, balancing would lead to an inappropriate judicial intrusion where political considerations are at issue. Pickering necessitates judicial inquiry into the likely harm flowing from the particular speech. See, e.g., McEvoy v. Spencer, 124 F.3d 92, 98 (2d Cir. 1997) HN25("Specifically, a court must assess the extent of the disruption caused by the employee's speech on workplace discipline, harmony among co-workers, working relationships, and the employee's job performance, and determine whether the disruption justifies the employer's attempt to stifle the employee's expressive activity."); see also Brewster v. Bd. of Educ., 149 F.3d 971, 979-80 (9th Cir. 1998) ("under Pickering, the determination of whether an employee's expression is constitutionally protected requires a fact-sensitive, context-specific balancing" (emphasis added)); see generally Lawrence Rosenthal, Permissible Content Discrimination Under the First Amendment: The Strange Case of the Public Employee, 25 Hastings Const. L.Q. 529, 531 (1998) (Pickering balancing [**58] is imprecise and vague causing a "chilling effect" on public employee speech).

Requiring a balancing inquiry measuring the particular speech against the resulting political harm to the legislator's constituent relations would send the courts into a political minefield. See generally James Kimmell, Jr., Note, Politics and the [*56] Non-Civil Service Public Employee: A Categorical Approach to First Amendment Protection, 85 Colum. L. Rev. 558, 566-72 (1985) (criticizing Pickering balancing approach); cf. generally Lewis v. Cowen, 165 F.3d 154, 167-69 (1999) (concurrence). Pickering would require courts to evaluate the complex and highly sensitive electoral calculations faced by legislators. See Moran v. State of Washington, 147 F.3d 839, 848 (9th Cir. 1998) ("The very point of the Pickering balancing test is to weigh the value of the speech that causes the disruption against the harm of the disruption that is caused, either directly or indirectly, by the speech. (emphasis added)). Federal courts are the least appropriate institution to make such overtly political assessments of the state legislative process. Such an [**59] intrusion would be rightly resented by state legislators as a perversion of state-federal relations and of separation of powers.

The dilemma cannot be resolved by partial deference to the elected official's judgment with respect to whether the political aide's public statements threaten constituent relations. Cf. Heil v. Santoro, 147 F.3d 103, 108 (2d Cir. 1998) HN26("[A] government employer's reasonable predictions of disruption are entitled to 'substantial weight even when the speech involved is on a matter of public concern.'" (quoting Waters, 511 U.S. at 673)); Shahar v. Bowers, 114 F.3d 1097, 1104 n.15 (11th Cir. 1997) (en banc) (noting that Pickering balancing requires "greater deference" for employment decisions of certain government employers). Pickering balancing requires the government to make ever greater showings of harm as the speech takes on more significant tones of public concern. See, e.g., Jeffries v. Harleston, 52 F.3d 9, 13 (2d Cir. 1995) ("The 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 [**60] it may be punished."). Speech of legislative aides that is likely to have negative electoral repercussions is also likely to be of the greatest public concern. As a result, any meaningful adherence to Pickering balancing would -- in the absence of blind deference -- still require the courts to make wholly inappropriate political calculations.

b. Elrod's Job Classification

The underlying government interest advanced in Elrod to justify limited patronage dismissals is -- in a broad sense -- a concern for the proper functioning of representative government. It is axiomatic that today a viable and robust representative system of government requires that elected officials respond -- within constitutional limits -- to the political views and policy desires of voters.

In this vein, newly elected officials, having received a fresh mandate from the electorate, are entitled to flexibility in hiring key political assistants who share their visions so that the electoral directives can be converted from campaign platitudes to working policies. As the court of appeals for the Second Circuit put it:

There is no likely circumstance in which a shared ideology is more important than [**61] when an elected official appoints a deputy who may act in his or her stead. Elected officials are charged with carrying forth the mandate of the voting public, and in order to effectuate the policies promised the electorate, that official must be able to have trusted advisors and alternates who are directly accountable to that official.

Regan v. Boogertman, 984 F.2d 577, 580 (2d Cir. 1993).

To be sure, the interest in securing clear communication linkages between legislators and constituents differs somewhat from the government interest asserted in Elrod for patronage dismissals. See Hall v. Ford, 272 U.S. App. D.C. 301, 856 F.2d 255, 263 (D.C. Cir. 1988) (Buckley, J.) (patronage dismissal cases do provide "a helpful insight into the employee speech cases" involving "high-level officials"). Elrod in its strictest sense focuses on the conversion of the "election-day" priorities of the voters to public policy. See McEvoy v. Spencer, 124 F.3d 92, 99 n.4 [*57] (2d Cir. 1997) ("Elrod is applicable so long as [the discharge motivated by expressive conduct] occurred during a political contest of some sort." (emphasis [**62] added)); Hall, 856 F.2d at 263 ("The affiliation cases arise in a discrete context . . ., the hurlyburly of elections and their aftermath" (emphasis added)).

An effective representative democracy requires more than post-election day shifts in policy. See supra Part III.B.2.b. Particularly in the age of the internet, mass media, and public polling, legislators must maintain a continuing sensitivity to the views, demands, values, and concerns of their electorates. To do so requires a continuing and robust dialogue between legislators and their constituents.

When considered in this broader sense, the reasoning supporting limited patronage dismissals in Elrod is in harmony with the interest in ensuring that state legislators maintain an on-going, unhindered and comprehensive dialogue with their constituents between election campaigns. It is the Elrod line, therefore, that provides the more appropriate analytical framework for analyzing the case at hand. Cf. Kimmell, supra, at 569-72 (advantages of categorical approach over ad hoc balancing).

D. First Amendment Protection for Staff Speech

The Court in Elrod adopted a categorical approach, [**63] identifying classes of jobs which are not entitled to First Amendment protection from dismissals. As modified by the Court in Branti, HN27dismissal of government employees based on political beliefs or association is constitutional so long as party affiliation is an appropriate requirement for the job in question. Branti, 445 U.S. 507, 518, 63 L. Ed. 2d 574, 100 S. Ct. 1287 (1980). The ultimate inquiry is whether the "position may be appropriately considered political." Id.

HN28Permitting dismissals based on electoral concerns for a narrow category of legislative-related jobs is the appropriate means -- particularly in light of the functional limitations on the courts' inquiring into purely political matters -- for reconciling the free speech interests of legislative aides with the interest in effective legislative representation. Cf. Nixon v. United States, 506 U.S. 224, 252-53, 122 L. Ed. 2d 1, 113 S. Ct. 732 (1993) (Souter, J., concurring) (separation-of-powers doctrine prevents "'inappropriate interference in the business of the other branches of Government'" and requires "respect . . . [for] the political departments" (citations omitted)). [**64] Staffers holding positions that are so connected to a legislator's lawmaking and representation roles that constituents might reasonably associate their speech for that of the legislator's are not entitled to First Amendment protection from dismissal where political interests and constituent relations are at issue. But cf. generally Barnard v. Jackson County, 43 F.3d 1218, 1223-25 (8th Cir. 1995) (county legislative auditor leaked sensitive information to the press; Pickering balancing test applied to government's interest in ensuring "close harmony" between the auditor and the county legislature).

For this small category of legislative jobs, "refusing to grant First Amendment found tenure would seem to take away little freedom not already lost in accepting the appointment itself." Gonzalez v. Benavides, 712 F.2d 142, 148 (5th Cir. 1983); see also Shahar v. Bowers, 114 F.3d 1097, 1105-06 (11th Cir. 1997) (en banc) (high-level employees must "appreciate the importance of appearances and the need to avoid bringing 'controversy' to their Department"). It hardly seems defensible to shield these aides with First Amendment tenure [**65] when their public pronouncements may jeopardize the tenure of the elected officials at whose pleasure and for whose assistance they serve. Their "selection presumably included that supposition [of lack of First Amendment protection]. To say that loss of their job is the price for [their] public declaration chills little." Id.

HN29To summarize, legislative aides occupying positions in which their public speech [*58] may reasonably be associated with, or mistaken for, that of the legislator's may constitutionally be dismissed for their public speech. See, e.g., Sims v. Metropolitan Dade County, 972 F.2d 1230, 1236 (11th Cir. 1992) HN30("It is clear that the First Amendment does not provide a right to continued government employment in a capacity that is inconsistent with, and undermined by, one's off-duty expressive conduct."). This rule applies even if the speech falls outside of the aides' public responsibilities. It is the perceived personal connection between legislator and staffer, and the legislator's resulting concern for his constituent relations, that is critical. But see Adler v. Pataki, 185 F.3d 35, 45 (2d Cir. 1999) ("If simple vindictiveness [**66] against the plaintiff . . . was the defendants' true motive, a First Amendment violation would be established.").

IV APPLICATION OF LAW TO FACTS

A. Federal Claims

Considering plaintiff's factual allegations and all reasonable inferences that can be drawn in her favor from them, dismissal of the speech and association claims brought under section 1983 is required. See Brass v. American Film Techs., Inc., 987 F.2d 142, 150 (2d Cir.1993); Allen v. Westpoint-Pepperell, Inc., 945 F.2d 40, 44 (2d Cir. 1991). "'It is clear that no relief could be granted under any set of facts that could be proved consistent with [plaintiff's] allegations[.]'" H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 249-50, 109 S. Ct. 2893, 106 L. Ed. 2d 195 (1989) (quoting Hishon v. King & Spalding, 467 U.S. 69, 73, 81 L. Ed. 2d 59, 104 S. Ct. 2229 (1984)); see also Geisler v. Petrocelli, 616 F.2d 636, 639 (2d Cir. 1980).

Gordon was terminated for her public comments on alleged police brutality at a public rally and press conference within the Assemblyman's district. At the time of the termination Assemblyman Griffith told Gordon that she "went against the [police] officers," and that [**67] "they are my friends." Compl. P 27. He then telephoned the police inspector to apologize for Gordon's participation and to inform him that Gordon would be terminated for her participation. The natural inference to be drawn from these actions is that Assemblyman Griffith was acting to protect his relationship with local police officers and with his electorate generally. By terminating Gordon, he publicly disassociated himself from her comments in an attempt to undo the political damage he believed -- whether correctly or not -- she had caused. See, e.g., Representation in State Legislatures, supra, at 133 (legislators balance competing views within the constituency).

Gordon's legislative job was one in which her public comments could reasonably be understood to reflect the views or, at a minimum, the sympathies of Assemblyman Griffith. She was the Assemblyman's Community Relations Director. She represented him to his constituents in the legislative district. She essentially operated as his alter-ego within the district, speaking to and acting for constituents on his behalf. See, e.g., Compl. P 10. This is precisely the kind of position which would lead constituents [**68] to assume the legislator agrees, or is at least sympathetic, with the staffer's speech. Plaintiff is not entitled to constitutional protection from dismissal for her participation and speech in the May 5, 1999 protest and press conference.

The motion to dismiss with respect to the speech and association claims brought pursuant to section 1983 is granted.

B. State Claims

Dismissal of the federal claims at the pleadings stage makes exercise of pendent jurisdiction in this politically sensitive case undesirable. See 28 U.S.C. § 1367(c)(3) ("HN31The district courts may decline to exercise supplemental jurisdiction over a [state law claim] if the district court has dismissed all claims over which it has original jurisdiction." (emphasis added)); Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 351, 98 L. Ed. 2d 720, 108 S. Ct. 614 (1988) [*59] ("When the single federal-law claim in the action was eliminated at an early stage of the litigation, the District Court had a powerful reason to choose not to continue to exercise jurisdiction.").

The state law claims are dismissed.

V CONCLUSION

The federal claims brought pursuant to section 1983 of Title [**69] 42 alleging constitutional violations are dismissed. Plaintiff has failed state a claim upon which relief can be granted. Exercise of jurisdiction over the pendent state law claims is declined.

Upon argument of the motion to dismiss it became apparent that the complaint accurately stated the controlling facts so that allowing an amendment of the pleading or permitting further discovery would serve no useful purpose.

No costs or disbursements are to be paid by the plaintiff given the absence of governing precedent.

SO ORDERED.

JACK B. WEINSTEIN

U.S. Senior District Judge

Dated: Brooklyn, New York

March 16, 2000