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Death Threats Not Protected Under First Amendment; Hearsay May Be Basis of Administrative Determination

In affirming the arbitrator’s recommendation a teacher should be terminated for making death threats against an arbitrator in a prior disciplinary proceeding, the First Department noted that hearsay can be the basis for an administrative determination and explained the threats were not protected by the First Amendment:

We reject petitioner’s allegations that the instant disciplinary proceeding and the ultimate discipline imposed against him violated the right to free speech under the First Amendment to the United States Constitution. Supreme Court properly deferred to the arbitrator’s finding that petitioner’s statements are exempt from First Amendment protection because they constitute “true threats.” We note that petitioner’s former attorney only disclosed the threats because he believed that petitioner’s increasingly erratic behavior rendered him genuinely dangerous. Under the circumstances, it cannot be argued that petitioner’s speech implicates matters of public concern … . Nor can it be disputed that petitioner’s death threats disrupted the initial arbitration proceeding… . Matter of Smith v New York City Dept. of Educ., 2013 NY Slip Op 05765, 1st Dept 9-3-13

 

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