Officer's statement not protected by First Amendment

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A divided Indiana Court of Appeals has ruled the New Albany Police Department had the right to discipline an officer whose racially charged comments made to fellow officers were leaked to the press and made public.

In Jack Messer v. New Albany Police Department, No. 22A05-1104-MI-179, the COA affirmed a judgment by Floyd Superior Judge Roger Duvall granting summary judgment for the New Albany Police Department.

The case involves the suspension of longtime officer Jack Messer, who made a controversial comment to fellow officers after an internal roll call meeting in January 2010. He said, “The biggest mistake that government made was giving those people civil rights.” After saying he didn’t mean what he had said, a complaint was not filed and his supervising officer didn’t believe a violation had occurred. But several days later, the comment was leaked to the press.

An internal police department investigation cleared Messer of wrongdoing, but a police merit commission complaint found the statement caused offense to the members of the community, raised suspicion of racism within the department, and was considered conduct unbecoming of an officer. The commission suspended him for 30 days, and on judicial review Duvall granted the department’s summary judgment motion.

Messer argued on appeal that his statement was protected by the First Amendment and the department should not have subjected him to discipline for making it. The parties agreed the First Amendment question was before the appellate court and is governed by Pickering v. Board of Education, 391 U.S. 563, 566 (1968), which held the First Amendment protected a public school teacher who wrote a letter to a newspaper in which he criticized the allocation of school funds and the manner by which the school board raised such funds. The court didn’t establish a general constitutional standard applicable to all government-employee-speech cases, but created a two-step test and held the government’s interest as employer must be balanced on a case-by-case basis against the individual and societal First Amendment interests.

Judges Melissa May and Edward Najam found that the department deserved special preference under the Pickering analysis because, like a previous case of City of Indianapolis v. Heath, 686 N.E.2d 940 (Ind. Ct. App. 1997), the officer’s speech caused a disruption and the comment wasn’t made as a private citizen. The value of the speech was also low, according to the court majority, because it wasn’t made as a part of government speech.

Judge John Baker disagreed in a separate opinion that said he would have reversed the trial judge’s summary judgment grant for the police department. He determined the statement was made in private and Messer had no reason to expect it would become public and “disrupt” the department, and because of that this case is distinguishable from Heath. The statement was protected by the First Amendment, Baker wrote.



  • anti-white speech cases
    So a political opinion about civil rights is not protected speech? The article doesnt say but we all know that the officer was white. Only whites tend to get their speech characterized as "racially charged" whatever that means. if a nonwhite person says something white people dont like, that would be protected speech for sure. Basically the courts are now implementing antiwhite laws in spite of race supposedly not being a legit factor in state action. Sure, unless its the judiciary taking it into consideration! Some first amendment cases boggle my mind. The ones that disallow nativities but never seem to involve the frequent conspicuous candle lightings of other sectarian faiths. Or how porn is protected speech but political speech is not. Totally backwards misapplication of the first amendment without any regard for framer's intent. Some first amendment! Only protects speech that the powerful approve of in advance. Maybe I shouldnt even say this or somebody will be pushing out a subpoena to see if they can get me fired, too. THOUGHTCRIME!

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  1. Especially I would like to see all the republican voting patriotic good ole boys to stop and understand that the wars they have been volunteering for all along (especially the past decade at least) have not been for God & Jesus etc no far from it unless you think George Washington's face on the US dollar is god (and we know many do). When I saw the movie about Chris Kyle, I thought wow how many Hoosiers are just like this guy, out there taking orders to do the nasty on the designated bad guys, sometimes bleeding and dying, sometimes just serving and coming home to defend a system that really just views them as reliable cannon fodder. Maybe if the Christians of the red states would stop volunteering for the imperial legions and begin collecting welfare instead of working their butts off, there would be a change in attitude from the haughty professorial overlords that tell us when democracy is allowed and when it isn't. To come home from guarding the borders of the sandbox just to hear if they want the government to protect this country's borders then they are racists and bigots. Well maybe the professorial overlords should gird their own loins for war and fight their own battles in the sandbox. We can see what kind of system this really is from lawsuits like this and we can understand who it really serves. NOT US.... I mean what are all you Hoosiers waving the flag for, the right of the president to start wars of aggression to benefit the Saudis, the right of gay marriage, the right for illegal immigrants to invade our country, and the right of the ACLU to sue over displays of Baby Jesus? The right of the 1 percenters to get richer, the right of zombie banks to use taxpayer money to stay out of bankruptcy? The right of Congress to start a pissing match that could end in WWIII in Ukraine? None of that crud benefits us. We should be like the Amish. You don't have to go far from this farcical lawsuit to find the wise ones, they're in the buggies in the streets not far away....

  2. Moreover, we all know that the well heeled ACLU has a litigation strategy of outspending their adversaries. And, with the help of the legal system well trained in secularism, on top of the genuinely and admittedly secular 1st amendment, they have the strategic high ground. Maybe Christians should begin like the Amish to withdraw their services from the state and the public and become themselves a "people who shall dwell alone" and foster their own kind and let the other individuals and money interests fight it out endlessly in court. I mean, if "the people" don't see how little the state serves their interests, putting Mammon first at nearly every turn, then maybe it is time they wake up and smell the coffee. Maybe all the displays of religiosity by American poohbahs on down the decades have been a mask of piety that concealed their own materialistic inclinations. I know a lot of patriotic Christians don't like that notion but I entertain it more and more all the time.

  3. If I were a judge (and I am not just a humble citizen) I would be inclined to make a finding that there was no real controversy and dismiss them. Do we allow a lawsuit every time someone's feelings are hurt now? It's preposterous. The 1st amendment has become a sword in the hands of those who actually want to suppress religious liberty according to their own backers' conception of how it will serve their own private interests. The state has a duty of impartiality to all citizens to spend its judicial resources wisely and flush these idiotic suits over Nativity Scenes down the toilet where they belong... however as Christians we should welcome them as they are the very sort of persecution that separates the sheep from the wolves.

  4. What about the single mothers trying to protect their children from mentally abusive grandparents who hide who they truly are behind mounds and years of medication and have mentally abused their own children to the point of one being in jail and the other was on drugs. What about trying to keep those children from being subjected to the same abuse they were as a child? I can understand in the instance about the parent losing their right and the grandparent having raised the child previously! But not all circumstances grant this being OKAY! some of us parents are trying to protect our children and yes it is our God given right to make those decisions for our children as adults!! This is not just black and white and I will fight every ounce of this to get denied

  5. Mr Smith the theory of Christian persecution in Indiana has been run by the Indiana Supreme Court and soundly rejected there is no such thing according to those who rule over us. it is a thought crime to think otherwise.