Marty Walsh 2024 Olympics

Boston Mayor Marty Walsh

(Steven Senne / Associated Press file)

BOSTON - Mayor Marty Walsh has said he will not enforce an agreement with the U.S. Olympic Committee that not only bans all city employees from criticizing the Boston bid, but also orders them to actively promote it.

Despite his assurances, the ACLU of Massachusetts is concerned. Deputy legal director Sarah Wunsch said Walsh's promise might not be good enough and the agreement is "troubling" and "ridiculous."

"I actually am concerned about the kind of legal advice the mayor is getting," said Wunsch, adding that the city has "no right" to make such an agreement. Walsh signed the deal as part of the effort to secure Boston as the host city for the Summer Games in 2024. You can read the relevant text below.

The first problem with the "joinder agreement," according to Lawrence Walters, who practices First Amendment law in the Orlando area, is censorship, and the second is "compelled speech," both of which are grounds for federal lawsuits that the city must be prepared for.

An employer, even a government agency, can censor speech if it's "reasonably related to the employment relationship and if the speech will cause a negative impact on the employer," said Walters. Compelled speech is tough to fight if the speaker's job is to actively promote the city's political or business efforts.

"The Boston Olympics is clearly a matter of public concern," said Walters, but a press secretary would "certainly have a higher obligation to speak positively of these issues than ... a low-level garbage collector."

He said the city needs to be ready for lawsuits if the order is enforced, or an employee claims to experience retaliation because of it.

"Federal court litigation is some of the most complex and expensive legal work you can do. In many ways, it's the brain surgery of the legal system," he said, and the city could be ordered to pay legal fees if it loses.

But that issue may never arise. MassLive.com asked Walsh's office if any employee would be fired or otherwise punished if they did not abide by the order.

"There will be no consequences for any city employee," said Laura Ogerri, the mayor's chief communications officer.

The mayor's office said the language in question is standard for all potential Olympic host cities, and Walsh is committed to open dialogue and freedom of speech.

MassLive has reached out to the U.S. Olympic Committee, asking if Walsh is allowed to ignore Section 2.05 of the joinder agreement, and if there will be any consequences if he does.

Wunsch said she's "glad" that Walsh said no one would be punished, but the very idea of the order could make people afraid to speak their minds anyway.

"It's hard to undo a chilling effect (on free speech). People in workplaces know there are all kinds of ways employers can punish them or put them in an undesirable category," she said. "Who wants to go against the mayor?"

She said unions should fight and the city bears a heavy burden for proving this is legal.

But Richard Stutman, president of the Boston Teachers Union, dismissed that idea.

"It's not even a story. No one is worried about that," said Stutman. "Everyone knows the mayor supports free speech."

Some courts have found that the right for public employees to speak as citizens is crucial because they have information that is not available to the public, according to Wunsch.

"What if they have a neighborhood meeting and the Olympics could affect their neighborhood or their ability to get to work?" said Wunsch. "What is this mayor thinking?"

She said it's one thing if promoting the Olympics is part of your job duties, but it's another if the bid does not involve you.

Bruce Miller, a professor at the Western New England University School of Law, said he doesn't think it's that simple, and that Walsh has broad and legitimate authority to restrict the speech of city employees. But in order to do it properly, he would have to punish everyone who violated the agreement, rather than singling out individuals.

It would be difficult for an employee to win a First Amendment challenge because courts often side with government agencies when weighing the interests of the parties involved, said Miller, citing a legal tool called the Pickering balance test. A more promising way to fight enforcement would be through labor channels with union backing.

Many courts have upheld limits on free speech for public employees.

On Jan. 9, a judge ruled that it was acceptable for the city of Greenville, Mississippi, to fire a police sergeant who posted comments critical of her boss on the mayor's public Facebook page. The court agreed that the posts violated three department policies.

The U.S. Supreme Court has said the Constitution protects public employees' speech on matters of "public concern," meaning it can "be fairly considered as relating to any matter of political, social, or other concern to the community." Miller said courts often chip away at that and side with government employers.

"The courts are always available for civil rights violations," said Walters, the Orlando attorney.

Each agency has procedures for filing grievances or appealing punishments. An employee could sue to invalidate the entire section dealing with speech, but it would be challenging because it would need to be shown that every possible enforcement is unconstitutional. The other option would be to challenge it as applied to a particular situation.

The relevant text of the Boston 2024 agreement is Section 2.05: "The City, including its employees, officers and representatives, shall not make, publish or communicate to any Person, or communicate in any public forum, any comments or statements (written or oral) that reflect unfavorably upon, denigrate or disparage, or are detrimental to the reputation or statute of, the IOC, the IPC, the USOC, the IOC Bid, the Bid Committee or the Olympic or Paralympic movement. The City, including its employees, officers and representatives, shall each promote the Bid Committee, the USOC, the IOC Bid, US Olympic and Paralympic athletes and hopefuls and the Olympic and Paralympic movement in a positive manner."