Speak Your Mind, Lose Your Job

Entertainment-industry maven Peggi McKinley, our very own martyr for free speech, recently experienced a kind of harmonic convergence that could only happen in Miami. Just as the town was preparing to welcome the third annual MIDEM international music conference, McKinley received some news that was like music to her ears: The federal court of appeals in Atlanta announced that she could proceed with her lawsuit against Miami-Dade County, a lawsuit that arose from comments about the MIDEM convention she'd made nearly two years earlier in her role as a member of the county's Film, Television, and Print Advisory Board.

After the conclusion of MIDEM's debut event, the organization had threatened to pull out of Miami if the county insisted on enforcing its anti-Cuba ordinance. That law prohibits the Miami-Dade from doing business with any group engaged in any sort of commerce with the island nation. In its first year, MIDEM acceded to the restriction and did not invite any musical groups or vendors from Cuba, a decision that drew intense fire from music-industry executives around the globe.

The county's policy, in turn, elicited criticism from McKinley at a meeting of entertainment-industry professionals. This is what she said: "While we respect and appreciate the concerns of Cuban Americans in the exile community, allowing a few people's political standpoint to dictate the potential economic growth of the area is not for the benefit of the community as a whole."

Former County Commissioner Bruce Kaplan had nominated McKinley to the Film, Television, and Print Advisory Board, and when he saw those words reported in the Miami Herald, he promptly informed McKinley that her comments were "totally inappropriate and insulting to the community I represent," and that they were "akin to saying we should have let Nazis in while Hitler systematically butchered six million Jews." The next day he asked his fellow commissioners to approve his request that McKinley be removed from the film advisory board. With only Katy Sorenson objecting, they consented and McKinley was given the boot.

A firestorm of controversy ensued, the main thrust of which concerned McKinley's right to speak her mind without fear of official retaliation. A month after the initial incident, the American Civil Liberties Union filed suit in federal court on her behalf, claiming that the commission, in dismissing her for her words, had violated her constitutional rights under the First Amendment. The remedy McKinley sought: reinstatement to the board.

That lawsuit had made little progress before Senior U.S. District Court Judge James Lawrence King when Kaplan abruptly resigned from office after state prosecutors brought criminal charges against him for filing false financial-disclosure forms. The county attorney's office, defending the commission against the complaint, then argued that McKinley's lawsuit should be tossed out because her case was moot: Kaplan could not reinstate her because he no longer a commissioner. Judge King agreed and dismissed the case.

McKinley's ACLU lawyers appealed the decision. On June 14 a three-judge panel of the higher court issued its ruling: King had erred; McKinley should be allowed to pursue her case and amend her complaint to seek monetary damages instead of her old spot on the advisory board.

Although a noteworthy victory for the lawyers representing McKinley -- the ACLU's Andrew Kayton and private attorney Louis Jepeway, Jr. -- the appeals court decision in no way addressed the question of whether her constitutional rights had been violated. Still, where once it appeared she'd been silenced, now McKinley will have an opportunity to make her case.

Her legal team is confident the law is on their side, and there's no doubt McKinley enjoys widespread public support, both personally and for the opinion she expressed. But a courtroom victory this time is far from assured.

One thing to keep in mind as this volatile case heads back to court: It is not a test of the county's anti-Cuba ordinance. It is strictly a First Amendment issue. The ACLU says McKinley should not have been fired for expressing her opinion; the county says elected officials have an absolute right to remove from office an appointee whose views do not reflect their own.

Assistant County Attorney Lee Kraftchick, defending Kaplan and the county commission, declines to discuss specifics of the McKinley case but, speaking generally, acknowledges that the U.S. Supreme Court has afforded First Amendment protection to individuals in the public sector when they speak out on "issues of public concern." That protection, however, is not absolute. Over the past 30 years, courts have come to apply a sliding scale of considerations in determining the extent to which a public employee's speech is protected.

One of those considerations examines whether the employee's speech affects job performance. In a precedent-setting 1968 case, the Supreme Court came to the aid of a schoolteacher who'd been punished for writing a letter to a newspaper criticizing his school board for its financial policies. That expression of opinion, the court said, did not interfere with the teacher's classroom responsibilities, and so it was protected by the First Amendment.

At the other end of the scale would be the office chatterbox. "It's okay for people to speak out on issues of public concern," Kraftchick notes, "but work also must get done. We're paying them to do a job, not just express opinions." So, in theory at least, a Miami-Dade County employee who spent every working hour of every day talking about Alex Penelas's proposed transportation tax might lawfully be fired because he simply wasn't performing his job.

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