# Hawkins v. Department of Public Safety & Correctional Services > Court of Appeals of Maryland · March 10, 1992 · 325 Md. 621 URL: https://www.frixlaw.com/law-library/cases/9718194 ## Case - **Full name:** Donald H. HAWKINS v. DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONAL SERVICES - **Court:** Court of Appeals of Maryland - **Decided:** March 10, 1992 - **Citations:** 325 Md. 621; 602 A.2d 712; 7 I.E.R. Cas. (BNA) 382; 1992 Md. LEXIS 41 - **Precedential status:** Published - **Opinion:** Dissent by Bell - **Judges:** Murphy, Eldridge, Rodowsky, McAuliffe, Chasanow, Karwacki, Bell - **Cited by:** 9 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9718194 ## How later opinions describe it (automated extraction) - holding plaintiff’s comments on the Holocaust were personal and did not concern public issues - holding that government employee’s use of racially charged language to describe bank teller is not matter of public concern ## Opinion text ROBERT M. BELL, Judge, dissenting. What the petitioner said to the bank teller, the focus of this case, in addition to being politically incorrect, as the petitioner suggests, was uncouth, even despicable, as was his motive for its utterance. The contents of that speech should not be and I suspect, is not, condoned except by those who share the views expressed or who are callous, or barbaric. 1 But, notwithstanding the contents of the speech, the petitioner should not have been dismissed from State employment on that account. I dissent from the majority’s holding that his dismissal was proper. *640 In affirming the judgment of the Circuit Court for Baltimore City, the majority takes alternative approaches. Using the first approach, notwithstanding its recognition that the facts of the case sub judice differ from those in Pickering v. Board of Education, 391 U.S. 563 , 88 S.Ct. 1731 , 20 L.Ed.2d 811 (1968) and Connick v. Myers, 461 U.S. 138 , 103 S.Ct. 1684 , 75 L.Ed.2d 708 (1983), from which the appropriate test for assessing the scope of a public employee’s first amendment rights in work-related situations has evolved, and Rankin v. McPherson, 483 U.S. 378 , 107 S.Ct. 2891 , 97 L.Ed.2d 315 (1987), which provides a specific application of that test, 2 the majority applies the Pickering/Con-nick test literally. Having thus determined that the speech directed at the bank teller did not involve a “matter of public concern,” that it “was not attempting to stimulate a dialogue on the holocaust,” 325 Md. at 633, 602 A.2d at 717, it holds that the speech was unprotected by the First Amendment and, consequently, that no balancing test was required. Alternatively, the majority conducts the balancing test, reaching the same result. Assuming, arguendo, that the petitioner’s speech was protected by the First Amendment, in the majority’s view, it is not entitled to very much protection because it is “near the periphery, and not at the *641 core, of [the first amendment] protection." 325 Md. at 637, 602 A.2d at 720. Then balancing the interests, the majority concludes: ... the evidence supports the conclusion of the secretary that Hawkins’s overreaction and resort to ethnic epithets in the peaceful surroundings of a branch bank, triggered only by the relatively minor irritant of not being able to cash his check as expected, gives foundation to a concern that Hawkins would resort to ethnic or racial abuse if frustrated under the considerable pressures of attempting to maintain order in a penal institution. 325 Md. at 638, 602 A.2d at 720. Under either approach, the majority is wrong. The first approach proceeds on a faulty premise: unless the speech is a matter of public concern or community interest, it is not protected, notwithstanding that it occurred away from the job, is not about the job, and, at the time the statements were made, was not spoken by one who could be identified with the job. 3 In other words, from the majority’s perspective, it is the speech itself, and only the speech, not the context in which it was uttered, that is important. Until one considers Pickering/Connick, and even Rankin , in context, the reach of their collective pronouncements cannot be fully appreciated. Those cases were never intended to apply to a situation such as the case sub judice. That point was made explicitly and persuasively in Flanagan v. Munger, 890 F.2d 1557 (10th Cir.1989). Flanagan involved the propriety of the reprimand by the Chief of Police of three high ranking police officers for their rental of adult, some sexually explicit, but not legally obscene, films, as part of the inventory of a video rental store in which they shared ownership and management. Investigation into the rental of the adult films was prompt *642 ed by an anonymous letter stating that the officers “ ‘were co-owners of a Porno Video business.’ ” 890 F.2d at 1560 . Following the written reprimand, the officers filed suit alleging violation of their first amendment rights. The court agreed; however, it declined to apply the Pickering/Connick public concern test, finding the fact situation before it to be “factually and conceptually different from the typical Pickering/Connick fact pattern.” 890 F.2d at 1562 . Holding that the case did not involve termination or discipline of a public employee “for critical and allegedly disruptive comments made about work[,]” id, (footnote omitted), the court observed: [although the Supreme Court has extended the Pickering/Connick test to a case[, Rankin,] which involves speech at work but not about work, we do not believe that the Pickering/Connick public concern test logically extends two more steps to this case in which a public employee (1) engages in nonverbal protected expression which is (2) neither at work nor about work. Id. Concerning the applicability of the “public concern” test, the court had this to say: The formulation of the public concern test in Connick and its progeny also implies that the test is not intended to apply to areas in which the employee does not speak at work or about work. “We hold only that when a public employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest, absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee’s behavior.” Connick, 461 U.S. at 147 , 103 S.Ct. at 1690 [, 75 L.Ed.2d at 720 ]. Thus, the Connick public concern test is intended to weed out speech by an employee speaking as an employee upon matters only of personal interest. The speech of the plaintiffs in this case is clearly not speech as an employee, and thus does not fulfill the purpose of the public concern test. A Fourth *643 Circuit case makes the point clear. “Pickering, its antecedents, and its progeny — particularly Connick — make it plain that the ‘public concern’ ... inquiry is better designed ... to identify a narrow spectrum of employee speech that is not entitled even to qualified protection than it is to set outer limits on all that is.” Berger v. Battaglia, 779 F.2d 992, 998 (4th Cir.1985). Clearly, plaintiffs are not speaking as employees and thus do not fit the narrow spectrum which the public concern test is meant to identify, (emphasis in original, footnote omitted) 890 F.2d at 1564 . The court chose to apply an alternative test, “whether the speech involved is “protected expression,” id., which it held, served a similar purpose. This requirement would serve the same purpose as the public concern test, which the plaintiff must satisfy before a court could apply the balancing test. The Flanagan court’s rationale applies with equal force to the case sub judice. The petitioner’s comments to the bank teller were made, not as a correctional officer, a State employee, but as a private citizen. Moreover, in addition to not having been made on the job site, the comments were not about work and, as previously mentioned, were made by one who could not be identified, by the people in the area, by dress or otherwise, with that job site. Therefore, the Pickering/Connick line of cases, including Rankin , simply does not apply. The majority position is that, unless any speech by a public employee, whatever the capacity in which it was uttered, no matter where it was uttered, and whether or not it related to the utterer’s work, is about, or involves, a matter of “public concern,” that public employee may be fired with impunity. In short, under the majority’s formulation and interpretation of Pickering/Connick/Rankin, a public employee, unlike other members of the public, has no first amendment right except in matters of public concern; if he or she comments on subjects that are not of public concern and word of it gets back to the public employer, the *644 employee may pay for it with the loss of his or her job. 4 That is not what the Pickering/Connick test was designed to accomplish, just the opposite. As the court in Berger v. Battaglia put it: The principle that emerges is that all public employee speech that by content is within the general protection of the first amendment is entitled to at least qualified protection against public employer chilling action except that which, realistically viewed, is of purely “personal concern” to the employee — most typically, a private personnel grievance. (Emphasis in original) 779 F.2d 992 , 998. The majority is wrong for another reason: it completely ignores the admonition stated in Rankin : “Vigilance is necessary to ensure that public employers do not use authority over employees to silence discourse, not because it hampers public function but simply because superiors disagree with the content of employees’ speech.” 483 U.S. at 384 , 107 S.Ct. at 2897 , 97 L.Ed.2d at 324 . It might be added that vigilance is also necessary to insure that public employers do not silence their employees’ discourse because of the heckler’s veto, i.e. because it is sufficiently politically unpopular or offensive to those who hear it that they importune the public employer to curtail it. Berger, 779 F.2d at 1001 . Furthermore, the majority’s position renders meaningless what I thought was crystal clear: that entitlement to public employment may not be saddled with unreasonable conditions, including a forfeiture of first amendment rights, in lieu of its denial altogether. See Keyishian v. Board of Regents, 385 U.S. 589, 605-6 , 87 S.Ct. 675, 685 , 17 L.Ed.2d 629, 642 (1967). *645 If the majority is correct, the ramifications for free speech are devastating and far reaching. Because much, perhaps even most, of the speech that passes between individuals is personal and does not involve matters of public concern, a public employee is in perpetual danger of losing his or her job. Moreover, by the majority’s formulation, the public employer may fire the public employee for speech about any subject matter, or for use of any language that it does not like or feels is inappropriate, leaving the public employee unable to protect him or herself. Thus, a neighborhood argument during which regrettable non-work related comments are made about or to a neighbor, if reported and the employer is so inclined, may be cause for dismissal. So, too, could comments directed at an athlete at a public sporting event be the basis for dismissal. Even intemperate remarks regarding the speaker’s prejudices— perhaps, expressing the same sentiments as expressed in the bank, made to a “friend” at the speaker’s home — under the majority’s view, could be grounds for dismissal if the speaker is a public employee. If overheard by a non-State actor, who reports it, or if reported by the “friend,” there is no reason that the public employer could not do what it is now doing, use those remarks as the basis for firing the employee. Because the remarks do not involve matters of public concern, the public employee would have no recourse. Furthermore, under the majority’s rationale, not only are public employees limited in their right to express themselves as citizens, even when away from the job and when not speaking about the job, but it does not afford them any way of conforming their speech to the public employers’ requirements. This opinion allows the determination of what speech is so offensive as to be cause for dismissal to be made on an ad hoc basis. It provides no standards, except that it cannot involve a matter of public concern, which provides precious little insight into what is actually allowed. In my opinion, the relevant inquiry, under these facts, is not whether the subject of the speech is a matter of “public *646 concern,” but rather, whether the speech falls within the protection of the first amendment. Unlike the majority, which, rather than attempt to establish that the petitioner’s speech does not fall within the first amendment protection, seeks only to discount its value, I believe that, however unpleasant the speech, it is, nevertheless, within the protection of the first amendment. McMullen v. Carson, 754 F.2d 936, 940 (11th Cir.1985) (expression of racist views are protected); Waters v. Chaffin, 684 F.2d 833, 837 (11th Cir.1982) (“Although the actual words Waters spoke cannot be said to be valuable to the public at large, the first amendment’s protections do not turn on the social worth of the statements, save in a few exceptions not relevant here.... Similarly, that Waters chose to express his ideas in language some might find offensive is not, in and of itself, enough to override his interest in spéaking freely.” (citations omitted)); Flanagan, 890 F.2d at 1565 . (distribution of sexually explicit, albeit non-obscene films). Moreover, “[i]n addition to [a] fundamental interest in speaking as he chooses, [a public employee] has an interest in being free from unnecessary work-related restrictions while off-duty.” Waters, 684 F.2d at 837 . See also Berger, 779 F.2d at 998 , in which the court concluded, that unless it is a matter of “purely ‘personal concern,’ ” i.e., personal grievance about work conditions, see Connick, 461 U.S. at 153-54 , 103 S.Ct. at 1693-94 , 75 L.Ed.2d at 723-24 , to the public employee, the content of all public employees’ speech within the general protection of the first amendment is entitled to at least qualified protection against public employer chilling. Having determined that the petitioner’s speech was protected by the first amendment, the speaker’s interest, as a citizen, in expressing himself or herself must be balanced against “the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Pickering, 391 U.S. at 568 , 88 S.Ct. at 1734-35 , 20 L.Ed.2d at 817 . Contrary to the majority’s conclusion, the balancing test in Pickering/Connick is *647 required to be conducted, not simply to be indulged for the purpose of covering all the bases. The balance is not between the value 5 of the speech and the State’s interest, as the majority holds it is; it is between the right to engage in free speech and the State’s interest. See Flanagan, 890 F.2d at 1565 ; Berger, 779 F.2d at 999-1000 . Turning to the balancing test, on the petitioner’s side is the speech itself and, as indicated, his right to engage in free expression. Relevant factors to be considered on the State’s side include “whether the [expression] 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.” Rankin, 483 U.S. at 388 , 107 S.Ct. at 2899 , 97 L.Ed.2d at 327 , citing Pickering, 391 U.S. at 570-73 , 88 S.Ct. at 1736-7 , 20 L.Ed.2d at 818-20 . In addition to the content of the speech, essential to the balance is the context, including the manner, time and place, in which it was made. See Connick, 461 U.S. at 152-53 , 103 S.Ct. at 1693 , 75 L.Ed.2d at 723-24 . Moreover, it is the effect of the speech, itself, on the public employer’s enterprise that is most important. See Pickering, 391 U.S. at 568-572 , 88 S.Ct. at 1734-36 , 20 L.Ed.2d at 817-19 ; Connick, 461 U.S. at 150-54 , 103 S.Ct. at 1692-94 , 75 *648 L.Ed.2d at 722-25 ; Flanagan, 890 F.2d at 1566 ; Berger, 779 F.2d at 1000 . The respondent’s argument, which the majority accepts, is that the State reasonably was apprehensive that the “potential” use, by the petitioner, of ethnic epithets on the job “could disrupt,” possibly involving physical violence, the petitioner’s work site. Significantly, the respondent does not argue, and the majority does not hold, that the petitioner’s speech in the bank actually had that effect, or even the tendency to do so. Thus, the State makes no effort to prove that the petitioner’s speech affected the actual performance of duty, impaired the harmony among his coworkers, impaired discipline by superiors, had a detrimental impact on the close working relationships for which personal loyalty and confidence are necessary, or, in any way, interfered -with the regular operation of the enterprise. Indeed, because the speech occurred not at work, but in a bank, when the petitioner was off duty and not in uniform and, of course, was not directed at anyone at the work site, it is unlikely that the State could have made such a showing. It relies, instead, on the proclivity, or trait, that uttering these words evidences. Given an appropriate stimulus in the work environment, the majority asserts, that proclivity or trait could result in the utterance of similar insults or intemperate comments there, which, in turn, could disrupt the work site. This focus on a character trait which the bank incident “might suggest” the petitioner has, demonstrates just how attenuated the State’s interest in controlling the petitioner’s speech is. It should only be the rare case in which non-employee speech — speech of a public employee that is not about work and does not occur at work, or under circumstances identifying the speaker to bystanders with work — is outweighed by the State’s interest in an efficient workplace. In McMullen , a recruiter for the Ku Klux Klan, who was also employed in a Sheriff’s office, appeared at a news conference called by the Klan to disclaim its involvement in a cross-burning. At that conference, which was broadcast on *649 the evening news on television, he identified himself as a Sheriffs office employee and “[both] television and newspaper media followed up on [his] status as a Klan recruiter in the Sheriff’s office.” 754 F.2d at 937 . McMullen was fired and the district court upheld the firing. The Court of Appeals affirmed. It reasoned: Based on an independent and complete review of the record, we hold that the trial court was correct in finding that balancing the rights of the parties required a decision for defendants. The rights plaintiff seeks to exercise are important. We recognize the dangerousness of any principle conditioning employment upon a person’s beliefs or association with a constitutionally protected organization. The reaction of the community to such racist views notwithstanding, plaintiff has a constitutionally protected right to express them. The reaction of a community cannot always dictate constitutional protections to employees. We hold only that a law enforcement agency does not violate the First Amendment by discharging an employee whose active participation in an organization with a history of violent activity, which is antithetical to enforcement of the laws by state officers, has become known to the public and created an understandably adverse public reaction that seriously and dangerously threatens to cripple the ability of the law enforcement agency to perform effectively its public duties. 754 F.2d at 940 . Although the petitioner is a correctional officer and, in that sense, in law enforcement, he is not as directly involved in law enforcement as was McMullen; although McMullen did not make arrests, his job as a temporary full-time clerk in the records section required him to file public and confidential records, to fingerprint applicants for employment, and to register firearms. Moreover, his comments did not have the same effect, actual or potential, on his job site that McMullen’s involvement in the Klan had on his; McMullen’s membership in the Klan, due to media coverage, directly affected the Sheriff’s office’s efficiency and effectiveness, as well as “the very esprit de *650 corps of the employees and officers.” 754 F.2d at 939 . So, without endorsing the result in McMullen or intimating that it is that rare case, what is obvious is that far greater justification for dismissal existed there than exists here— the effect of McMullen’s Klan membership, when disseminated to the public at large, had a very definite impact on the Sheriff’s office. 6 There is yet another reason that the balance does not work out in the State’s favor. To reach the conclusion the State reaches, it is necessary to extrapolate from the petitioner’s remarks in the bank that the petitioner is prejudiced against, and, therefore, is likely to hurl offensive comments at any and all ethnic groups or is so obnoxious, or insensitive, as to react indiscriminately when aroused. Indeed, the thrust of the State’s argument proceeds principally on the latter premise: given appropriate frustrations, the petitioner is likely to “resort to ethnic or racial abuse,” directed toward whichever ethnic or racial group he perceives as causing the frustration. The only evidence the State offered in support of that conclusion came, at the first hearing, from the personnel officer at the institution and, at the second, from the Director of Security for the Division of Correction. Neither witness testified as an expert and neither could have. Neither witness, the record reflects, is an expert in human behavior; neither is a psychologist, sociologist or psychiatrist. That testimony was just so much speculation; it was not supported by any data indicating that the conclusions expressed were more likely so than not so. Consequently, in my view, if relevant, the testimony simply did not prove the proposition for which it was *651 offered. 7 By not introducing, or even attempting to introduce evidence of the effect of the bank speech on the operations of the Department of Correction, in general, or on the institution at which the petitioner worked, in particular, the State acknowledges the lack of impact of that particular speech. If the State were to prevail on the basis of the speculative testimony it presented, it will be enabled significantly to control the speech of its employees; when non-work related speech, which also occurred off the job site, is reported and the State finds it to be inappropriate, it would need to do no more than speculate that that intemperate and unpopular speech may be reflective of a character trait, which, if displayed on the job, “could” pose a risk of job disruption. The State, in short, with impunity, could not only chill, but control, the speech of a significant number of citizens, who work for State government, simply because they work for State government. Those citizens would be rendered effectively without first amendment rights. None of the cases heretofore decided accepts that proposition. Neither do I. I dissent. I am authorized by Chief Judge MURPHY and Judge ELDRIDGE to say that they share the views expressed herein. . These remarks refer equally to the bank teller who responded to the petitioner’s second jibe with an almost equally uncouth comment. . It has been suggested that this case represents an extension of the Pickering/Connick test to a class of cases in which a public employer takes adverse employment action against a public employee for making a statement which is unrelated to employment but is made at work. Flanagan v. Munger, 890 F.2d 1557, 1562 (10th Cir.1989). That distinction arguably need not be drawn. Rankin was employed by a law enforcement agency. The argument in support of her dismissal was that, since the office in which Rankin was employed was a law enforcement office, the remark had a very definite effect on the operations of the office. As the dissent put it: "As a law enforcement officer, the Constable obviously has a strong interest in preventing statements by any of his employees approving, or expressing a desire for, serious, violent crimes — regardless of whether the statements actually interfere with office operations at the time they are made or demonstrate character traits that make the speaker unsuitable for law enforcement work.” Rankin v. McPherson, 483 U.S. 378, 399 , 107 S.Ct. 2891, 2904 , 97 L.Ed.2d 315, 334 (1987) (Scalia, J., dissenting). . As the majority points out, the petitioner did display his correctional officer identification to a service representative while attempting to have his check approved for cashing. The offending comments were not made to the service representative and were not prefaced by any remarks associating him with the Department of Correction. . It is interesting to note that the majority’s references, in part II of its opinion, to T. Massaro, Significant Silences, Freedom of Speech in the Public Sector Workplace, 61 Cal.L.Rev. 3 (1987) is not supportive of the broad approach the majority takes. The comment on p. 14 of the article was made in the context of a discussion of Connick v. Myers, 461 U.S. 138 , 103 S.Ct. 1684 , 75 L.Ed.2d 708 (1983). The cases listed in footnote supporting the author’s statement on p. 20 involve employee speech, Le. speech about the job or on the job. . A rule requiring the content of speech to be valued is fraught with many and, I fear, insurmountable complexities. The most difficult is that the process of valuation is inherently subjective and, thus, aside from the extremes, perhaps, there will be no uniformity; the value of the speech may depend upon which court hears the case. On this point, despite its clear recognition of the movement away from it, I sense that the majority nostalgically yearns for the revitalization of Chaplinsky v. New Hampshire, 315 U.S. 568 , 62 S.Ct. 766 , 86 L.Ed. 1031 (1942). In this regard, awaiting decision by the United States Supreme Court is R.A.V. v. St. Paul, Minn., No. 90-7675, argued December 4, 1991. The issue there is whether an ordinance banning cross burning impermissibly prohibits speech in contravention of the first amendment. Stated differently, the case may provide insight into whether “hate speech” is protected speech. . That I use McMullen v. Carson, 754 F.2d 936 (11th Cir.1985) to’ demonstrate the strength that the State’s interest must have to overcome the right of a bigot, any bigot, to express his or her views should not be viewed either as an endorsement of the result in that case or an indication that there is a sliding scale for bigotry toleration. All bigotry is vile and none should be condoned. But no bigot should be denied the right to free speech. . The best, and most effective, proof of probability that the petitioner will be “frustrated under the considerable pressures of attempting to maintain order in a penal institution” is evidence that he has been so frustrated and did act out as alleged. Such evidence is conspicuous by its absence. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9718194. Public record. Not legal advice.