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On February 5, 2008, in State v. DeAngelo, Docket No. A-73-07, the New Jersey Supreme Court held that a municipality violated free speech rights by banning temporary signs on public streets, including a 10-foot high inflatable rat at a labor protest. This case was the subject of a previous blog entry wherein our office analyzed the oral argument which took place in September 2008.

The Court unanimously called a Lawrence Township ordinance, which prohibited “banners, pennants, streamers…portable signs, balloons or other inflated signs (except grand opening signs,” unduly restrictive of free speech and expression. Specifically, Justice John Wallace, Jr. wrote that the ordinance “is content-based, does not fairly advance any governmental interest, and is not narrowly tailored to prevent no more than the exact source of that evil that is seeks to remedy.” 

By way of background, in 2005, Wayne DeAngelo, a senior official with the International Brotherhood of Electrical Workers Local 269, was fined $100 and assessed $33 in costs for using the inflatable rat to protest a Gold’s Gym being built in the township without union labor. A trial judge and the Appellate Division panel rejected constitutional challenges by DeAngelo and the union, but a dissenting appeals judge, Jack Sabatino, agreed the ordinance was constitutionally deficient.

In the Supreme Court’s ruling, Justice Wallace said DeAngelo’s protest was protected by the state and federal constitutions, as to both content and location. To support same, he cited U.S. Supreme Court precedents holding that public streets, parks, and sidewalks are traditionally public forums that occupy a “special position in terms of First Amendment protection” and that government cannot restrict expressive activity in such venues without a “compelling reason.”

The Court also rejected the rationale advanced by the township that the ordinance was designed to promote aesthetics and maintain public safety. Specifically, the Court stated, “although they are salutary goals, they do not justify a content-based restriction on free speech” and that an ordinance that prohibits a union from displaying a rat balloon, while authorizing a similar display as part of a grand opening, is content-based.

This ruling is expected to have statewide implications since municipalities across New Jersey have similar ordinances. Therefore, many municipalities will have to rework their own ordinances in order to conform to the ruling. Moreover, according to Andrew Watson, DeAngelo’s attorney, the ruling is a landmark victory for labor activists. Specifically, Watson stated, “this vindicates their [labor union’s] rights to an orderly, non-threatening means of protest.” As such, this case represents another important judicial decision regarding labor protesting and its collision with free speech.

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In Brennan v. Township of Fairfield, the United States District Court for the District of New Jersey addressed an important topic for public safety officers, freedom of speech. In this case, Plaintiff, a police officer, alleged he was retaliated against for distributing a memorandum on police letterhead to the Mayor and Township Council. The memorandum contained the officer’s reasons for having issued two motor vehicle summonses to a township administrator.   

Defendants moved for summary judgment of plaintiff’s claim. The Court granted the motion because Plaintiff’s speech was made pursuant to his duties as a police officer. Therefore, his speech was not protected by the First Amendment. In addition to seeking summary judgment, Defendants also moved for sanctions against Plaintiff for the assertion of a claim which Plaintiff later withdrew. The Court denied this motion along with Defendants’ other motions to disqualify counsel and to compel mediation.   

This case, although very brief, illustrates how one’s freedom of speech can be limited based on the context in which the speech is offered. Speech made pursuant to one’s duties as a public safety officer will not be protected by the First Amendment, thereby negating support of a retaliation claim. As a result, it is important for public safety officers to be cognizant of the distinction between speech made pursuant to their employment from all other forms.

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In the case Reilly v. City of Atlantic City, 06-2591, the United States Court of Appeals for the Third Circuit held that a police officer’s testimony in a police corruption case is protected speech and his superiors are not entitled to qualified immunity regarding his retaliation claim. 

Appellee, Robert Reilly, a former Atlantic City police officer, filed suit against Robert Flipping, the Director of Public Safety, and Arthur Snellbaker, the Chief of Police, claiming that they retaliated against him for his participation, including trial testimony, in an investigation into police corruption a decade earlier. The alleged retaliation involved defendants formally recommending Reilly be demoted and suspended for 90 days, despite, after an extensive investigation, an independent hearing officer’s recommendation that Reilly serve a four day suspension for violating police department regulations.

Reilly accepted Flipping’s offer that he retire instead of being disciplined. Thereafter, Reilly filed this action alleging defendants’ actions violated his First Amendment free speech rights and Fourteenth Amendment right to procedural due process. The District Court denied defendants’ motion for summary judgment on the procedural due process claim, thereby declining to grant them qualified immunity. The Court also denied their motion for summary judgment on the First Amendment retaliation claim. This appeal followed.

The Third Circuit indicated that determining whether a public official is entitled to qualified immunity involves a two-step analysis. First, the court must decide whether a constitutional right would have been violated on the facts alleged and, if so, whether the right was clearly established. If the answer to the latter is “yes,” the defendant is not entitled to qualified immunity.

In analyzing whether Reilly had the claimed First Amendment right, the Third Circuit cited Garcetti v. Ceballos, 547 U.S. 410 (2006), which distinguished between employee speech and citizen speech and held that the First Amendment does not prohibit managerial discipline based on an employee’s expressions made pursuant to official responsibilities. Defendants argued under Garcetti they are entitled to qualified immunity on Reilly’s First Amendment claim because his testimony was made pursuant to his official duties and, thus, not protected by the First Amendment. 

In rejecting this argument, the Third Circuit noted: (1) every citizen owes the duty of giving testimony to aid in the enforcement of the law; (2) the overwhelming weight of authority concludes that an employee’s truthful testimony is protected by the First Amendment; and (3) there is a need to protect the integrity of the judicial process. Therefore, the Court concluded that the fact that Reilly’s official duties provided the impetus to appear in court is immaterial to his independent obligation as a citizen to testify truthfully. Reilly’s testimony constituted citizen speech and his claim is not foreclosed by the “official duties” doctrine announced in Garcetti and, as a result, defendants are not entitled to qualified immunity. 

This case has significance for any public safety officer who is called to testimony in a matter related to his official duties. Public safety officers, as with other citizens, have an obligation to testify truthfully in a court proceeding not only to preserve the integrity of the judicial process, but to ensure just enforcement the law. More importantly, however, this case illustrates that an officer’s superiors who retaliate against him/her will not be entitled to qualified immunity in a subsequent civil suit.      

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On September 23, 2008, the New Jersey Supreme Court entertained oral argument in the case of State v. DeAngelo, A-73-07, wherein the issues of labor protesting and free speech collide. The case involves a union official who was fined for displaying a 10-foot tall, inflatable rat at a Lawrence Township labor rally, thereby claiming the municipality violated his constitutional and statutory rights.

Wayne DeAngelo, a senior official with the International Brotherhood of Electrical Workers Local 269, was fined $100 and assessed $33 in court costs for using the balloon to protest a gym being built without union labor. DeAngelo asked the Court to declare the ordinance in question, which prohibits “banners, pennants streamers, pinwheels, or similar devices; vehicle signs, portable signs, balloon signs or other inflated signs (except grand opening signs)”, unconstitutional and violative of the National Labor Relations Act. The trial court and the Appellate Division have rejected the challenge, finding the ordinance a valid time, place, and manner restriction on commercial speech.

At the hearing, DeAngelo asserted the ordinance was “overbroad” because it prohibits all forms of signs used in protests, while allowing a variety of other signs, such as political and industrial signs and those at grand openings and real estate sales. In response, the Township asserted the ordinance and its enforcement were both within constitutional bounds, namely because DeAngelo’s use of the rat balloon amounted to commercial speech, which can be regulated.

Despite its listed exceptions, Justice Roberto Rivera-Soto said the ordinance appeared strictly worded and content-neutral. Conversely, Justice Barry Albin seemed troubled by the ordinance because it gave the gym owner permission to use an inflatable sign to announce his grand opening, but barred labor protesters from using inflatable signs at the same location. It will be interesting to see how the Court ultimately rules and addresses the intersection of these important issues. Undoubtedly, the case will be followed closely by labor organizations, who want to ensure their rights are adequately protected. 

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