Does Pasadena have the right to discipline Eric Walsh for expressing his views?

Pasadena put Public Health Director Eric Walsh on leave for his churlish remarks on gays, evolution

My post last week on the case of Pasadena Public Health Director Eric Walsh — whose churlish remarks about gays, the prophet Muhammad, Jay Z and evolution, among other things, have caused Pasadena to put him on leave while the city investigates — drew an unexpectedly large and sharp response.

Some readers questioned Walsh’s fitness to hold office; others vigorously defended his right to his beliefs. Though I never called for him to be dismissed (merely suggesting that he should prepared to explain himself), some also accused me of jumping to trample his 1st Amendment rights. One reader called me an anti-Christian bigot. Oh well.

On a more serious note, the controversy surrounding Walsh raises legitimate questions about how far a public employee can go in expressing his views without compromising his duties. It’s not simply a matter of saying he has a right to his opinions and that the government must tolerate all speech by its employees. Imagine, for instance, a police officer who openly advocated white supremacy. Could that officer be trusted to patrol a neighborhood that was predominantly black? Would juries accept his testimony in cases involving minority defendants? The answers are clearly no, and the law, recognizing that, permits government agencies to discipline employees for their speech in some instances.

As Eugene Volokh, the conservative legal scholar at UCLA, wrote this week, “The government may discipline employees when the speech tends to disrupt work relationships or relationships with clients or the public, if the disruption exceeds the value of the speech.” (Volokh went on to write that Walsh’s comments may be protected if they are regarded as political expression, though he did not say specifically that those protections would be enough.)

In other words, if Pasadena concludes that Walsh’s denunciation of homosexuality interferes with the city’s ability to provide services to gays, it might have the right to discipline him, even though he has a right to hold and express his opinions.

That’s hardly novel, by the way. This newspaper’s ethics guidelines, which I helped to write, similarly constrain the speech of some employees. If a political reporter at The Times, for instance, were to put up a lawn sign supporting a candidate he was covering, or donate money to that candidate, he could lose his beat or even his job, even though he has a constitutional right to hold those views. And we’re an organization that feels pretty strongly about speech.

But that misses what seems to me the more salient point in Walsh’s case. Not only did he pop off about the various kinds of people he believes are condemned by God, he also specifically rejected evolution, which he regards as the mischievous work of Satan rather than a fact of science. Those remarks suggest not just intolerance or religious fervor but active rejection of science important to carrying out his work as a health officer. In that instance, his comments raise questions not so much about his beliefs as about his competence. Would Pasadena want a health director who claimed tobacco did not cause heart disease or who insisted that climate change was a myth?

There, I would argue, Pasadena officials have reason to ask whether Walsh has demonstrated unfitness for his job, irrespective of what he thinks about Jay Z.

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