I never really get on with Sherry Colb's articles over at Findlaw.com: I find she's generally willing to sacrifice a good argument for old dogma. Such is the case in her article today, The New York Racist Float Case.

The conduct in the case she mentions is deplorable, but I have to go along with the judge's decision: if the three men were off-duty, then tasteless as what they did was (and I have to wonder why the parade organisers allowed it), I can't see firing them not being a violation of 1st Ammendment rights.

What she advocates, though, is an incredibly broad interpretation of what free speech allows one to conclude:

One way of thinking about speech is as evidence of what a speaker is capable of doing. A public school math teacher who announces his strong belief that girls are stupid and unfit to study math cannot be expected to do a fair job of educating girls in mathematics, as his position requires him to do. A Humane Society employee who says that animals deserve to suffer cannot be trusted to provide nurturance and love to homeless animals. And a firefighter who finds humor in the lynching of a black man cannot be trusted to risk his own life to protect the lives of black men, women and children.

But is that truly the case? Is it not possible that a person can hold certain views, but because they hold those views and know them incompatible with their duties, perform their duties in any event? (Indeed, from what little reading I've done of legal ethics so far, aren't there points where lawyers are ethically obligated to act against their own personal beliefs, particularly in defending people they believe to be guilty?) A math teacher might make certain his techniques were more objective than his fellows, knowing his own prejudices; the fireman in question might risk more, knowing that his views will hold him to a higher level of accountability than otherwise. It would depend not only upon his speech, but upon the relative values he placed on honor, duty, his personal beliefs, and how much he values the opinions of those around him (and the negative consequences of those opinions). Indeed, by penalising employees merely for public speech, doesn't it deny superiors of opportunities to recognize that greater scrutiny is needed for certain individuals? [1]

I doubt that such ethical or honorable concerns are appropriate in this case (simply because someone who behaves in so undecorous a fashion on a public float probably isn't worried about dividing their public and private thoughts), but wouldn't it make more sense to advocate a heightened scrutiny upon the officers by, say, internal affairs (or even by journalists), and then firing them for something they've actually done in relation to their jobs? Wouldn't Ms. Colb be better off proving her assertion than just taking it for granted?

[1] For instance, if I were the superiors of the police officers in question, I'd be watching them like a hawk and suspending them at the first sign that they weren't doing their duty.