One of the challenges that firefighters face with regard to social media is the vagueness in First Amendment law. Courts limit governmental employers from establishing bright line rules that restrict the free speech rights of public employees. Absent such bright line rules, firefighters have a theoretical right to free speech but no concrete guidance that can help to avoid social media nightmares.
The problem goes back to the 1967 case of Pickering v. Board of Education. In Pickering, the U.S. Supreme Court adopted a balancing test to evaluate the free speech rights of public employees.
The test holds that government employees have First Amendment protection when speaking on a matter of public concern as a private citizen, and their interest in commenting outweighs their employer’s interest in restricting their speech. Three components must be evaluated: matter of public concern; as a private citizen; and the balancing of interests. In a contested case, a judge ultimately must decide each of the three issues.
The Pickering balancing test therefore allows judges a great deal of discretion. How much discretion do judges have, and how difficult it is for fire chiefs and firefighters alike to know when speech is protected? Consider two recent fire service cases that were decided by two different U.S. Circuit Courts of Appeal on the first component: matter of public concern.
In Moreau v. St. Landry Parish Fire Protection District No. 3, No. 19-30767 (5th Circuit, April 7, 2020), a firefighter who was upset that police forcibly removed a teacher from a school board meeting posted on Facebook “all of this going on with this poor teacher being treated so unfairly makes one thing perfectly clear … These ‘boards’ everywhere, ruled by good old boy politics, need to be dissolved ASAP … We have the same exact problem at our fire department … A board of clueless idiots making the decisions that affect many including the very employees who actually do the job.” He was terminated for his comments.
In Marquardt v. Carlton; City of Cleveland, 971 F.3d 546 (6th Circuit, 2020), an EMS captain was fired for commenting on social media on the shooting death of a 12-year-old African-American, Tamir Rice, by police. The captain posted: “Tamir Rice should have been shot and I am glad he is dead ... I am upset I did not get the chance to kill the criminal [expletive].”
The firefighters in each case sued, claiming that they were terminated for engaging in protected speech. Each claimed that their post involved a matter of public concern, that they posted as private citizens and that their interests in commenting outweighed their employer’s interest in restricting their speech. The trial judges in each case ruled in favor of the fire departments, concluding the First Amendment did not apply, because the postings did not involve a matter of public concern. Both firefighters appealed.
Who prevailed?
In Moreau, the 5th Circuit concluded that the firefighter’s comments were personal criticisms that did not arise to the level of being a matter of public concern. As such, his termination was upheld, notwithstanding the fact that the speech involved public criticism of elected officials.
In Marquardt, the 6th Circuit concluded that as offensive as the captain’s post may have been, it nonetheless involved a matter of public concern, namely race relations.
In sending the case back to the trial court for further proceedings, the 6th Circuit cautioned that its ruling should not be considered supportive of the comments that the captain posted. In fact, the court reminded the parties that the Pickering test has three components, and under the balancing test, an employer “may regulate employee speech to a greater extent than it can that of private citizens, including to discipline employees for speech the employer reasonably predicts will be disruptive.”
Takeaways
A skeptic may wonder how a firefighter can be expected to conform his/her social media postings to the law when federal judges who are experienced in First Amendment jurisprudence cannot provide a consistent benchmark.
The more important lesson: Firefighters who use social media to voice their opinions must do so with a sober understanding of the risks. Judges have a great deal of discretion and often will quarrel amongst themselves about how the law is to be applied. That is not how it should be, but it is what it is. That being the case, firefighters must consider the wisdom of rolling the dice with their career.
This last point creates a paradox. First Amendment case law poses a well-known problem area for fire departments that seek to craft a social media policy. Overly restrictive policy language is subject to being struck down as being a prior restraint because it “chills the free speech” rights of public employees. The hypocrisy apparently is lost on the judges who, by inconsistently interpreting the First Amendment, are themselves chilling public employee speech.
At least until judges and legal scholars recognize the Pickering quagmire that has resulted from seemingly arbitrary judicial decision-making, all we can do is recognize that the problem exists and conduct ourselves accordingly. Perhaps that is the solution.
