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Orders of the Providence, R.I., Police Department preventing employees from speaking to the media without prior approval would “inevitably stifle” them “in their role as citizens,” a Rhode Island federal judge has ruled. U.S. District Court Judge Mary M. Lisi struck down the department’s orders, concluding that the gag orders are unconstitutional. The decision is Rhonda B. Kessler v. City of Providence et al., No. 00-566-ML. The Rhode Island chapter of the American Civil Liberties Union (ACLU) called the decision a victory for not only Providence’s police officers, but for the public as well. Providence lawyer John W. Dineen, who represented Kessler on behalf of the ACLU, said the decision is an important one because it could impact on the numerous disputes that are being waged nationally on this topic. Dineen noted that Lisi’s opinion might provide guidance to the Providence Police Department if it decides to draft another order. Lisi’s ruling voids the two orders. “Order No. 16″ states that any member of the police department must first get permission from the chief or public affairs director before talking to the press. The other order, “Regulation 200.4,” essentially says that employees of the department must not tell any “unauthorized person” information pertaining to the business of the department. The police orders, “clearly impose prior restraints on the speech” of members of the department, Lisi concluded. She also noted that while the rules may also prohibit speech that is not constitutionally protected, “their substantial impact on constitutionally protected speech is fatal.” “Such an all-encompassing ban necessarily works to deprive Police Department employees of their First Amendment right, as citizens, to comment on matters of public interest, thereby depriving the public of information regarding matters relevant to public health and safety,” Lisi wrote in the Sept. 28 decision. SELF-DEFENSE Kessler, a sergeant and 13-year veteran of the force, filed suit against the department in 1999 after she was suspended for a day without pay for comments she made to The Providence Journal defending herself in connection with published criticisms of her handling of a sexual assault investigation. Kessler challenged the department’s orders that they chilled the First Amendment rights of police officers, were overbroad, vague and an unconstitutional “prior restraint” on speech. Lisi noted that the police department could have implemented narrowly tailored restrictions, such as forbidding employees from commenting on ongoing investigations. Instead, Lisi noted, the department imposed the same “clumsy and overbroad restrictions on all speech” that were invalidated in another federal case that the R.I. ACLU successfully challenged in federal court on a similar policy of the Providence Fire Department in Providence Firefighters Local 799 v. City of Providence, 26 F. Supp. 2d 350, 355 (D.R.I. 1998). Police officials argued that the discretion regarding permission for members of the department to speak is not unlimited because members are entitled to a hearing prior to being punished for an alleged violation of a rule or may file a grievance with the police union. Lisi disagreed, saying that argument “misses the mark.” “Although there may be some restrictions on the power to impose punitive sanctions after the fact, the police rules give the decision maker virtually plenary power to censor protected speech before it occurs,” she wrote. Providence Assistant City Solicitor Kevin McHugh said his office is still weighing whether to appeal Lisi’s ruling on the orders. McHugh said that on other issues dealing specifically with alleged violations of Kessler’s rights, Lisi did not make a finding and he anticipates resolving those questions at trial. Those issues include whether to expunge the suspension from her record and whether to reimburse her for one day’s pay.

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