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Preventing Legal Fires - Not All Speech is Free

As a firefighter or public safety government employee, what are your free speech rights under the 1st Amendment?

As we have seen a number of firefighters have lost their jobs over postings on their social media sites, thinking they had a protected right to say anything or depict otherwise offensive pictures for their shared audiences. The issue of “words matter” when speaking, brings one back to the often quoted but erroneous statement of “shouting fire in a crowded theater” opined by Justice Oliver Wendell Holmes in U.S. v. Schenck (249 U.S. 47 (1919) " as the most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic" which was not related to fires or theaters but Schenck who at the time was the Secretary of Socialist Party of America on trial for writing and distributing a pamphlet expressing his opinion opposing the draft during World War I under the Espionage Act. The pamphlet did not call for violence or civil disobedience, however as the ruling indicated the pamphlet posed a clear and present danger to the nation at war, Schenk went to prison and the courts continue to struggle over what defines “free speech. Two other cases during that time Debs v. United States, (249 U.S. 211 (1919) and Frohwerk v. U.S (249 U.S. 204 (1919)) severely impacted the rights of free speech during this time of war.

These rulings were the law of the land until a 1969 ruling entitled Brandberg v. Ohio (395 U.S. 444 (1969) effectively overturned Schenck and its progeny and in Brandberg, the Court held that inflammatory speech or speech that advocated violence by members of the Ku Klux Klan is protected under the 1st Ammendment unless it is directed to inciting lawless action and is likely to incite such action. Twenty years later in 1989, the Supreme Court, in Texas v. Johnson (491 U.S. 397 (1989)) indicated that flag burning is also protected speech (although I abhor the conduct – my editorial comment) under the First Amendment's Free Speech clause.

We saw such review of free speech during the Vietnam War where demonstrators were burning their draft cards in a protest of the war. There were numerous war protest events across the country and in one of many cases, a case entitled United States v. O'Brien (391 U.S. 367 (1968)), the defense argued that the act of burning your draft card is a symbolic form of free speech; a constitutional right guaranteed by the First Amendment. The Supreme Court decided against the draft card burners as it determined that the federal law was justified and that it was unrelated to the freedom of speech whereas the government had a significant “government interest” in preventing such actions. 

Employees who work in the private-sector do not generally have First Amendment protection for their speech in the workplace. On one level, a private sector employer could take the absence of a direct First Amendment right as providing free rein to discipline, terminate or retaliate against employees for their speech in the workplace. Before doing so, however, the private sector employer should take into account the effect of the anti-discrimination laws such as Title VII, RCW 49.60 (the Washington Laws Against Discrimination or “WLAD”), whistle blower laws, and various local laws offering some protections to employees.

The country has come a long way in how it deals with 1st Ammendment rights, or have we? I have always stated to my firefighters that not all speech is free and we need to be careful in the context of how we speak, post our views on social media and other actions that may lead to termination.

Let’s take the case of Garcetti v. Ceballos, (547 U.S. 410, 2006), a U.S. Supreme Court decision involving First Amendment free speech protections for government employees. The plaintiff in the case was a district attorney who claimed that he had been passed up for a promotion for criticizing the legitimacy of a warrant. The Court ruled, in a 5-4 decision, that because his statements were made pursuant to his position as a public employee, rather than as a private citizen, his speech had no First Amendment protection.

Out of the hundreds of fire service social media terminations, let’s review Capt. Jimmy Morris, a firefighter at Columbia (SC) Fire Department, fired after city officials learned he had made two Facebook posts in which he threatened to do harm to protesters if they got in his way. In response to a Black Lives Matter protest, former Captain Morris stated on his Facebook, “Idiots shutting down I-126. Better not be there when I get off work or there is gonna be some run over dumb a****.” According to the Chief of the Department, Aubrey Jenkins, “the posts were especially inappropriate on the heels of violent events in Baton Rouge, St. Paul and Dallas and due to the magnitude of the impact that the posts had, is why I made the decision.” In another case, Boston Firefighter Octavious Rowe was terminated after being placed on suspension for positing on his Facebook site a decapitated head and after a long investigation was terminated over “hateful and violent language” on social media. He was terminated by Fire Commissioner Joseph E. Finn stating the veteran firefighter came under scrutiny for his postings that were viewed as antigay, anti-Semitic, and critical of interracial relationships. The Commissioner indicated,” it is my duty to ensure the safety of the public, and the hateful and violent language used by this individual will not be tolerated by the department.”

However, let’s look at Sprague v. Spokane Valley Fire District, (No. 93800-8, 2018) the Washington Supreme Court ruled that a Fire District’s policy of prohibiting employees from discussing religious issues over the District’s email system violated an employee’s First Amendment right to free speech. The takeaways here highlights the fact that when an agency permits its email system to be used for some personal uses, the agency must carefully consider whether any subject-matter restrictions will qualify as viewpoint restrictions. There are six aspects of this ruling that affect its scope and impact on Washington agencies;

1) Agency email system may qualify as a “non-public forum” if agencies permit any non-agency use by employees and First Amendment protections only protect an employee who is speaking as a private citizen;

2) The Washington Supreme Court ruled that Captain Sprague was not acting pursuant to his official duties when he sent the emails at issue, and instead, was speaking as a citizen holding that First Amendment protections only protect employees speaking on issues of public concern;

3) The Court held that only some of the religious content in the emails related to matters of “public concern,” another essential finding for a First Amendment free speech claim. An employee discussing religious issues in a private capacity does not raise Establishment Clause issues (prohibits the establishment of a religion by Congress);

4) The emails at issue were only sent to fellow employees who had consented to receiving them and were not sent to members of the public. Had the Captain been pressuring his subordinates to engage in these religious discussions, the District’s Establishment Clause defense may have prevailed;

5) While the opinion does not reference the Public Records Act, the Court’s ruling that the Captain had sent the emails as a private citizen does highlight the fact that any “personal” emails are not sent by employees while acting within the scope of employment and finally, while the restriction at issue in this case applied to religious discussions, this was not a free exercise case, and the holding could affect other subject-matter restrictions that apply to a particular viewpoint.

Which brings us to Pickering v. Board of Education, (391 U.S. 563 (1968)), which remains the Supreme Court’s seminal case on the First Amendment rights of public employees. The case established the principle that public employees such as firefighters do not relinquish their right to speak out on matters of public importance, or public concern, simply because they have accepted government employment. The case coupled with another similar case Connick v. Meyers (461 U.S. 138 (1983)) brought a standard to the court for evaluating 1st Amendment protections for public safety or government employees. The test is known as the Pickering Balancing Test consisting of: 1) is this a matter of public concern; 2) if the speech touches upon a matter of public concern, did it motivate an actionable adverse action against the employee; 3) even if the speech was the basis for the adverse action, the First Amendment claim can be defeated if the public entity had an adequate justification for treating the employee differently from any other member of the general public and 4) where you speaking as a citizen on a matter of public concern.

In Westmoreland v. Sutherland (No. 10-3766. United States Court of Appeals, Sixth Circuit), Westmoreland, appealed from the entry of summary judgment in favor of his employer, the City of Bay Village and its Mayor Deborah L. Sutherland, with respect to his claim that he was unlawfully disciplined in retaliation for having exercised his First Amendment rights speaking out against the disbandment of the Dive Rescue Team. The court using the Pickering analysis ruled in his favor indicating that he was speaking as a citizen on a matter of public concern and the actions against him by the City and Mayor violated his 1st Amendment Rights. Not all cases go this way where there are many case rulings against firefighters and other public service government employees as each case is heard on its individual merits and fact patterns.

In closing, bringing a case under 1st Amendment protections is difficult at best due to the complexity of how your speech affected the employer and if it is determined as protected speech under the Pickering analysis. Each case stands alone.

In preventing this legal fire, the employer must have a bulletproof social media policy, it must be taught to the employee base, it must be enforced every time there is a violation and firefighters must use restraint when expressing your frustrations on your social media site.

ENDNOTES

The Atlantic - It's Time to Stop Using the 'Fire in a Crowded Theater' Quote. Trevor Timm. November 2, 2012

Statter, Dave – www/statter911.com

http://mrsc.org/Home/Stay-Informed/MRSC-Insight/February-2018/Fire-...

http://apps.americanbar.org/labor/lel-annualcle/08/materials/data/p...

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