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By Paul Doughty, Fire Law Group, LLC

Many firefighters and police officers are surprised to learn that, as government employees, they have less protections for their speech than non-government employees in some limited instances.

The first step in understanding the limits of free speech for government employees is recognizing that the courts have restricted some forms of speech for everyone. The First Amendment of the United States Constitution guarantees that the government cannot "abridge the freedom of speech." The courts, however, have consistently found that this guarantee is not without limit. In a famous case where an advocate opposing the passage of the Espionage Act of 1917 published a leaflet opposing the draft during World War I, the U.S. Supreme Court wrote "… you can't falsely yell 'fire' in a crowded theater or use words in such circumstances that are of such a nature to create a clear and present danger that they will bring the evils that Congress has a right to prevent." The Supreme Court ruling here upheld the criminal conviction of the leaflet. A modern-day analogy of this would be recognizing and agreeing with the limits against someone falsely yelling "he's got a gun" in a high school.

The second step in understanding the limits of free speech is understanding that the First Amendment and the Bill of Rights prevents the government from limiting or punishing free speech. It does not limit the rights of private employers to restrict or punish their employees for their speech or expression. For example, a private employer of a truck driver, could legally discipline or terminate the driver for a social media post, as long as it doesn't violate any other statutory protection the driver might have, such as the Civil Rights Act. Absent a discriminatory reason, the truck driver's employer could fire him for speech it feels negatively impacts business.

Imagine owning the trucking company, and an employee posts on social media the owner is a crook, the employee has a poor safety record and his deliveries are never on time. The owner would be within his rights as a private employer to fire the employee. Even if the employee isn't attacking the business, the owner could still fire the employee, if he posted speech the owner simply disagrees with. For instance, if the owner were an ardent supporter of the Second Amendment and the employee posts statements supporting stricter gun control, the owner could fire the employee without violating the First Amendment. It's important to note that the employer, not the government, is punishing the speech.

While the Supreme Court has expressly rejected the premise that government employees surrender their right to free speech simply by virtue of their employment for the government, the court has also recognized that, like the trucking business mentioned above, the government can limit the speech of their employees where it negatively impacts the efficiency of the delivery of public services. To balance these competing interests, the court has created a balancing test.

The first prerequisite in the balancing test is to determine whether the employee is speaking as a spokesperson for the governmental agency, or speaking as a private citizen. The courts will try and determine whether the speech was part of the employee's official duties, such as a chief officer or a public information officer. Employees should take a look at their own social media presence and consider whether someone might confuse them with their department's official spokesperson. Photos of people in uniform or at the firehouse may lead to unintended confusion.

When an employee is speaking as a private citizen, the court will then balance whether the speech was on a "matter of public concern" that outweighs the "government's interest in promoting the efficiency of the public service it provides through its employees." Where the promotion of efficiency outweighs the public concern, the court may uphold limitations on speech and any resulting discipline. 

Determining what matters are of public concern is most often not easy. This test is often difficult to apply with precision and predictability. Political leadership, elections and taxes are essential matters of public concern; petty or personal grievances with a chief or supervisor are not.

Likewise, comments that can interfere with the efficient delivery of public services include speech that impairs the trust and respect of the department such as racist or sexist comments.  Comments of this nature rightly concern the public and may make them wonder whether the officer and the governmental department will provide services equally and fairly.

The complexities of applying this test have confounded attorneys, scholars, and jurists. Given this uncertainty, the best advice on social media may be: when in doubt, leave it out!

If a personnel issue arises due to a governmental employee's speech or social media posts, city officials should contact a labor attorney before taking action against the employee. SC Municipal Insurance and Risk Financing Fund members are eligible for 10 free hours with the labor hotline by calling 1.866.800.0118.

Paul Doughty is a 34-year veteran of the fire service, including 31 years at the Providence (R.I.) Fire Department. Doughty has a bachelor's degree in fire science from Providence College, where he now serves as adjunct faculty in the fire science program. He has also served as an instructor for the Rhode Island Fire Academy. He has a degree from Roger Williams University School of Law and has practiced law for 20 years, with a focus on fire service law. He also serves as a core trainer and board member for Fire Law Group, LLC.