NH ACLU - Public Employee Free Speech Rights Violated

As reported in the Concord Monitor today, the NH ACLU has issued a press release criticizing Plymouth State University and Newfound Regional High School for punishing public employees that supported a professional colleague in a criminal sentencing hearing. The ACLU has rightly pointed out that the actions of these public institutions not only violate the free speech rights of the employees under the State and Federal Constitutions, but also threaten the integrity of our justice system.

What did the employees do?

Many professionals, including several PSU faculty members, wrote letters and gave testimony at the sentencing hearing of Kristie Torbick, who pled guilty to sexually abusing a minor. The circumstances of the crime were appalling and worthy of serious punishment, but that is not the end of the inquiry. In criminal sentencing hearings, in order to do justice, the Judge must focus both on the circumstances of the crime, and the personal circumstances of the offender. As in many cases, professional colleagues and friends came forward to express their support for Torbick because they had known Torbick for a long time, felt they knew her character and work ethic, and believed they could help the sentencing judge do justice. They did not claim that Torbick was innocent, and in fact had spent their entire professional lives working to help victims of abuse. They participated in the sentencing hearing for the legitimate purpose of providing truthful testimony to the judge so he would have the information necessary to impose a fair sentence. Obviously, the witnesses did not intend to express support of any form of sexual abuse.

The Actions of PSU and Newfound Regional High School

Plymouth State publicly punished the faculty members who provided mitigating evidence in the sentencing hearing. One of the adjunct emeritus professors was banned from ever teaching again, and two others are barred from teaching until they receive Title IX training (it's unclear who would teach the class, since these folks are probably at least as qualified to present a Title IX training as anyone else at PSU). Under mounting public pressure, the Bedford school superintendent and a school counselor from Newfound Regional High School resigned, almost certainly in order to avoid termination.

Unfortunately, as widely reported, one of the PSU faculty members expressed misguided opinions about the victim that are worthy of public condemnation. But why are the other faculty members being punished and publicly humiliated? Why were the Newfound Regional High School employees treated in such a disgraceful fashion? In widespread coverage, including the Union Leader and Concord Monitor, no one has suggested that any other sentencing witness made any inappropriate comments about the victim.

The Governing Law

A NH statute, RSA 98-E:1 states, “a person employed as a public employee in any capacity shall have a full right to publicly discuss and give opinions as an individual on all matters concerning any government entity and its policies.” As interpreted by the NH Supreme Court, this law provides greater protection to public employees than the First Amendment to the United States Constitution. But the First Amendment does also provide very substantial free speech protections to public employees.

It is settled first amendment law that the government, when acting as an employer, must respect the first amendment rights of its employees. Connick v. Myers, 461 U.S. 138, 142 (1983). To be protected under federal constitutional standards, the government employee's speech must relate to a matter of public concern, and the employee's interest in expression on the matter must not be outweighed by any injury the speech could cause to "the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." Pickering v. Board of Education, 391 U.S. 563, 568 (1968).

Under these legal protections, PSU and the Newfound Regional School District employees will likely claim violations of their statutory and constitutional rights. The next phase of news coverage will probably be about the lawsuits filed by aggrieved professionals against their former employers.

What is PSU, by its Actions, Teaching its Students?

As a public university, PSU should be dedicated to academic ideals – and American ideals – like free speech, freedom of association, and protecting the individual against the power of the State. By its example and by its actions, unfortunately, PSU is teaching its students to the wrong values:

  • Guilt shall be determined by association, not by deeds.
  • Express only those views that have been approved by the University.
  • Participation in the democratic process may result in harsh punishment, unless you are on the “correct” side of the debate.

Are these the values that we want our taxpayer supported university to teach its students?

---- Ted Lothstein