When is speech protected?

By LIAM MAYO
Posted 10/25/21

TUSTEN, NY — An article written for the October 7-13 issue of the River Reporter reported on disputes between Nico Juarez and Robert and Yunhui Olman, disputes that included allegations of …

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When is speech protected?

Posted

TUSTEN, NY — An article written for the October 7-13 issue of the River Reporter reported on disputes between Nico Juarez and Robert and Yunhui Olman, disputes that included allegations of trespassing and harassment.

One element of those disputes has since been resolved: the chain that blocked the end of Cackletown Road has been removed. The town has reclaimed 238 feet of that road, according to Juarez, with the Tusten Highway Department paving it and thereby reclaiming its maintenance, though that distance leaves the Olmans with the culverts by Cackletown Pond. According to Tusten Supervisor Ben Johnson, that maintenence had been in the works for some time, and had been communicated to the Olmans several months earlier.

The bulk of the dispute remains unsettled, and shows signs of escalating.

Juarez v. the Town of Tusten

The week of October 10, Juarez sent an informational packet to nearly every registered voter in Tusten, working from an electoral roll compiled in August by the Sullivan County Board of Elections. The packet included an informational letter on his disputes with the Olmans, a sample ballot for the Town of Tusten 2021 elections, and a copy of the River Reporter’s October 7-13 article.

“I am writing you today to share critical information about… Town Council candidate Yunhui “Vicki” and her husband Bob Olman,” wrote Juarez in the informational letter. He introduced himself as a resident of Cackletown Road, as the chairman of Tusten’s zoning board of appeals (ZBA) and as the town’s animal control officer. Within the letter, he summarized the course of his legal disputes with the Olmans, and called on town residents to vote in the coming election, writing, “This is a critical election for the Town of Tusten.”

Following the delivery of that packet, on Thursday, October 14, at least one member of the Tusten Town Board received a personal message from Robert Olman asking if they supported the contents of the informational letter and claiming that it gave the impression that Juarez represented the town of Tusten with his comments. (Other members of the town board declined to comment, or stated that they had no information on the matter.)

On that same day, states Juarez, Johnson contacted him, asking if he had written the letter and stating that Johnson would need to speak to the town attorney concerning a possible ethics issue. That conversation was followed by an email exchange leading to a meeting on Monday, October 18, in which Juarez felt pressured to resign.

Juarez to this point refuses to resign. He maintains that he did nothing wrong with writing the letter, and that it was pure political speech, protected under the First Amendment.

The Tusten Town Board met on October 22 in executive session, following a pre-scheduled board meeting to discuss the 2022 budget. Following that meeting, Johnson sent Juarez an email informing him that the board would hold a special meeting on Tuesday, October 26 at 6 p.m., and requested his presence for an executive session to discuss a personnel issue.

Following conversations between Juarez’s lawyer and the town attorney, conversation which occured just before press time, that town board meeting has been called off, according to Juarez.

The limits of protected speech

The Town of Tusten Ethics Code has a section (22-7) that regulates political activity. Clause A  states that no appointed town officer shall solicit any assessment, subscription or contribution to any political party or candidate from any town employee or officer; clause B states that no town employee or officer in uniform can attempt to influence any voter at any political caucus, primary or election.

Whether that section applies to Juarez’s speech remains unclear; whether it is sufficient to override his First Amendment rights appears equally uncertain.

A report on First Amendment jurisprudence written by David L. Hudson Jr. for the First Amendment Center, titled “Balancing Act: Public Employees and Free Speech” summarizes the current state of First Amendment rights as they apply to public employees.

Following the Supreme Court’s decision in Pickering-Connick, public employees must prove two things in claiming their speech to be protected under the First Amendment, writes Hudson; “They must show their speech addresses a matter of public concern,” and “They must show their free-speech interests outweigh their employer’s efficiency interests.”

In Pickering-Connick, the Supreme Court ruled that Pickering, a teacher fired for writing a letter critical of the board of education and the superintendent of schools in the school system where he worked, had been protected under the First Amendment. His comments were not directed against his immediate co-workers, meaning they were unlikely to cause morale issues that harmed the school’s efficient operation, nor did they interfere directly with his teaching or the school’s efficiency. And his comments were on matters of public importance.

Juarez believes his comments are similarly protected; “This is a matter of public interest,” he writes. Depending on how matters go with the town, he is prepared to take the case to federal court.

Both Robert and Yunhui Olman declined a request to be interviewed in connection with this article.

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