Court Declines to Protect Speech in Westchester County

On June 27th, Judge Denise Cote of the U.S. District Court for the Southern District of New York held that public statements by Robert Astorino, the County Executive of Westchester County, New York, were not protected by the First Amendment.  Astorino’s statements were about what he and others across the country believe is the true agenda of Obama’s Department of Housing and Urban Development (HUD), headed by Secretary Julian Castro, and were part of an ongoing political dispute between Westchester County and the federal government.

Judge Cote held that Astorino’s speech is not protected by the First Amendment because the County entered into a consent decree with HUD and because Astorino, as a public official, does not speak as a citizen for First Amendment purposes. Judge Cote’s logic deprives local municipalities of their voice in disputes with the federal government. Indeed, if Judge Cote is correct, there can never be a public debate about the implementation of HUD’s programs in Westchester County except on HUD’s terms.

Astorino claims that HUD is trying to force local communities – including those in his own county – to abolish their zoning laws to make way for a vast increase in affordable housing, including high-rise housing projects.  When Astorino ran for reelection as County Executive in 2013, he did so on a platform of opposing this agenda, and he has spoken against it many times since.  Indeed, a burgeoning national debate about HUD’s aims for local communities, and its tactics, has been touched off by his statements.

Under Astorino’s predecessor in office, Westchester County entered a consent decree in a lawsuit the federal government had brought against the county.  Among other things, the consent decree requires the county to educate the public about the benefits of affordable housing and racially diverse neighborhoods.  This the county has done, but not enough to satisfy the court.  In addition, the court held that Astorino’s public, political statements “undermined” the public education campaign the county was obliged to conduct.  Even though Astorino spoke as a local leader on behalf of his community, the court held that his comments are not protected by the First Amendment because he is a public employee.

Bad as this decision is, it could have been worse.  The only remedy the court ordered was the release of the videotapes of depositions in which Astorino and other officials are asked about the terms of the consent decree.  HUD had asked for far more, including a declaration by the court that Astorino’s political statements were false, and a ruling forcing Astorino to put this declaration on the county website and distribute it to the municipalities in the county. But the court “decline[d] to decide… at this time” whether it would grant such additional relief.

Previously, CIR had submitted an amicus brief arguing that such relief would violate the First Amendment as it would turn federal courts into political truth squads empowered to censor the views of local communities and their officials. Judge Cote denied permission to file the brief soon after the court received it.

The ruling is now on expedited appeal to the Second Circuit Court of Appeals, which must decide whether an officeholder’s core political speech really is unprotected by the First Amendment.