On July 22nd, the Center for Individual Rights filed an amicus brief before the Second Circuit Court of Appeals on behalf of Westchester County, New York. The County Executive, Robert Astorino, is engaged in an ongoing political dispute with the Obama administration’s Department of Housing and Urban Development (HUD), which Astorino has publicly accused of seeking to take over local zoning in Westchester County and across the country. After a federal judge held that Astorino’s political speech was not protected by the First Amendment, the county appealed to the Second Circuit, where CIR filed an amicus brief to highlight the important First Amendment and Federalism issues at stake.
In CIR’s brief, we take exception to the District Court’s holding that Astorino’s speech was not protected by the First Amendment because Astorino, as a public employee, was not speaking as a citizen for First Amendment purposes.
We argue this was a crucial error of law that obliterates the free-speech rights of elected officials. Astorino’s statements regarding HUD and its Affirmatively Furthering Fair Housing program are part of a growing national debate about whether and how the Obama administration has radicalized HUD’s agenda. They were also addressed squarely to the voters of Westchester County. The freedom of elected officials to speak to their constituents on matters of public policy, it should go without saying, is central to any democracy. If the First Amendment protects anything, it protects Astorino’s political speech here.
CIR also argues that, in addition to the erroneous application of First Amendment law, the District Court also erred by breaking with long-established principles of federalism and acting as an arbiter of truth in a political dispute. In essence, the District Court lent its prestige to one side of a political controversy by penalizing Astorino for his criticism of the administration. When it comes to disputes between the political branches of governments, the courts are to remain neutral and should not favor one side over the other. As our brief explains, “The District Court here made itself a political ally of the executive branch of the federal government by punishing and seeking to deter the political speech of an elected official [who opposed] that government’s policies.”