A recent attempt by Nebraska to fire a state trooper who joined an affiliate of the Ku Klux Klan presents a clash between the trooper's First Amendment rights of speech and association and the state's desire to ensure its officers and agencies maintain the trust of the public and will actually do their job.
Last March, Nebraska fired State Trooper Robert Henderson for conduct unbecoming an officer. Specifically, Nebraska had discovered that Henderson was a member of the Knights Party, an affiliate of the Ku Klux Klan, and, under the name "White Knight in Nebraska," had publicly made racist declarations on the Knights Party Web site.
The State Troopers Association of Nebraska (STAN) contract provides for binding arbitration in the case of termination of a trooper. On Aug. 17, the arbitrator ordered Nebraska to reinstate Henderson and pay back wages. The arbitrator reasoned that because Nebraska couldn't point to any specific acts of racial misconduct, as opposed to just statements on a website and membership in an organization which describes itself as a non-violent political group, firing Henderson violated his free speech rights. STAN says it shares the state's disgust at Henderson, but represented him out of contractual obligation.
Nebraska Attorney General Jon Bruning has challenged the arbitrator's decision in court. Bruning agrees that Henderson has First Amendment rights to speak his opinions and join the Knights Party, but disagrees that those rights require Nebraska to employ him. He hopes that the court will look past the "binding" nature of the arbitration and allow Henderson to be removed.
Bruning has also said he will work with a state senator to have the Nebraska Crime Commission rescind Henderson's license to be an officer. In a letter to the Nebraska Crime Commission seeking such rescission of Henderson's license, State Sen. Ernie Chambers, the only black legislator in Nebraska, reviewed the history of the KKK. Chambers wrote that "[c]laiming that the Klan is merely a legal political movement is tantamount to proclaiming that La Cosa Nostra is merely a conservative gentlemen's club and that the Mafia is nothing more than a charitable fraternal organization dedicated to community betterment."
Whether Bruning and Chambers will be successful in separating Henderson from his badge rests largely on how far the First Amendment extends into an employer/employee relationship with the government. Once upon a time, this would have been an easy question, as the mid-20th century United States Supreme Court embraced Justice Holmes' assertion, made while he was on the Massachusetts Supreme Judicial Court, that "a policeman may have a constitutional right to talk politics, but he has no constitutional right to be a policeman."
Today, however, the law is more nuanced. Government agencies are not absolutely prohibited from disciplining their employees for undesirable speech. Instead, an assessment of whether a government agency may discipline an employee for expression hinges on two factors: whether the speech is public speech regarding a matter of public concern or private speech within the scope of employment, and whether the employee's interest in speaking freely exceeds the state's interest in ensuring the efficient operation of the government agency.
The constitutionality of Henderson's dismissal probably turns on the court's balancing of Henderson's interests against Nebraska's interests in ensuring the "efficiency" of its law enforcement. There are a number of the ways in which employing Henderson might impede this efficient operation of the Nebraska State Troopers. These include possible state liability for negligent employment if Henderson ever shoots a minority, increased distrust of the police, increased danger to Henderson's colleagues either because of the anger Henderson inspires, or because Henderson withdraws from a fight with minorities knowing how bad it would look if he were to shoot a minority and maintaining public reputation and trust in an agency. A court sympathetic to Nebraska's position may find any one of these concerns sufficient to justify firing Henderson.
This will be an interesting case to watch.
Daniel Kotler is a student at Tulane Law School, and an Editor at Large for ACSBlog: The Blog of the American Constitution Society. This column originally appeared on ACSBlog and is reprinted here with permission.