Commentary, Leadership, Legal

Firefighter Social Media Use During the Black Lives Matter Movement

John K. Murphy

Police and fire departments across the country are cracking down on officers and firefighters for posting racist, violent memes and comments during the recent Black Lives Matter protests resulting from the deaths of several black Americans at the hands of the police.

Some Examples

  • Jack Peters, a fire lieutenant who was president of Leonia Fire Company No. 1., has stepped down from his position as lieutenant after posting a Facebook comment under a picture of a young female protester holding a sign that says “F*** the Police.” Peters was one of hundreds to post comments, some of which were deemed racially and sexually insulting, reported the Daily Voice.
  • Dallas Fire-Rescue Battalion Chief Allan Springer is under investigation after making racist comments on Facebook. Springer commented on a post about Black Lives Matter protests that “we need to find out who’s behind this and find a good tree to use!”
  • Derby Fire Department Chief Robert Laskowski has been placed on administrative leave after posting a comment on Facebook that said, “They need a few Blackhawks with snipers to solve the problem,” in reference to clashes between police and the public in New York City
  • Lyons Fire Protection District Chief J.J. Hoffman has resigned following a social media post about racial justice protesters. Hoffman’s resignation followed an investigation by the NAACP into comments on a personal Facebook page where the chief was tagged on a comment that read, “I think the Denver police should have Denver fire dept G it 2 and 1/2 inch line and their monitor and wash all this human trash into the gutter,” to which Hoffman replied, “ha ha if I was down there I definitely would open up our high pressure bumper turret and have some fun.”
  • Gilmer County Volunteer Fire Department Chief Martin Hess has been removed from the West Virginia State Fire Commission after sharing social media posts the governor deemed inappropriate and inflammatory. A post allegedly shows Hess wearing a T-shirt that says “All Lives Splatter” and showing a car running over people.
  • FedEx fired an employee for engaging in a Blue Lives Matter counter protest that mocked Floyd’s death by re-enacting the scene of the officer pressing his knee against his neck. A New Jersey corrections officer who was involved in the re-enactment was suspended from his job as well. There are many more but you get the gist.

My free legal advice to you is to STOP THIS STUPID BEHAVIOR and keep your jobs.

We have not learned much since the last time inflammatory and racist postings have cost firefighters their jobs as noted when three South Carolina firefighters were terminated for a BLM racist posting on a social media site. They were not the only ones as there are continual terminations of firefighters in what seems a weekly event of committing social media career assisted suicide, expressing racist and discriminatory speech.

Today we are seeing a movement in the United States not seen since the Civil Rights Movement and Antiwar protesters during Vietnam. Our Nation is at a crossroads with race relations and police actions not seen in decades as thousands of people have taken to the streets and to social media sites in recent weeks to express solidarity with or objections to the Black Lives Matter movement and others against police brutality.

Here is a primer on your rights to free speech

The 1st Amendment guarantees freedoms concerning religion, expression, assembly, and the right to petition.  It forbids Congress from both promoting one religion over another and also restricting an individual religious practices.  It guarantees freedom of expression by prohibiting Congress from restricting the press or the rights of individuals to speak freely.  It also guarantees the right of citizens to assemble peaceably and to petition their government.   

We can see that you have a right of Free Speech, but is all speech free? I will give the attorney answer, IT DEPENDS on your employer.

Private sector employees have no federal protections under the 1st Amendment as it relates to your jobs. Certain States have some protections, but in general as a worker in private industry, you have NO PROTECTED free speech rights however you may have certain rights when engaging in off-the-job political activity. Employers need to be equally careful in punishing employees with extreme company policies prohibiting their employees’ rights of free speech from a public relations basis (see Starbucks reverses its clothing and messaging ban, below).

Public sector employees have limited First Amendment right to free speech. Government employers can’t discriminate against you based on your speech under the often used Pickering Rule (and its progeny) analysis. In brief, the Pickering Rule protections involve the following principles: 1) The employee must be addressing a matter of public concern, 2) The speech cannot interfere with the employee’s job duties, and 3) The employee must be speaking as a private citizen.  Case law pretty much adheres to these rules but there are always exceptions, so remember that “not all speech is free” and every First Amendment case is judged on its merits.  In general firefighters and others in government service (public sector), your employer cannot prohibit you or retaliate against you for protesting or speaking out under certain circumstances such a as long as you don’t engage in criminal conduct and the issue is of political or social concern to the community rather than a personal gripe.

Some First Amendment lawsuits have already arisen from the recent protests from a Chicago Transit Authority (CTA) bus driver who sued his employer for allegedly violating his free-speech rights, claiming he was suspended for talking with other drivers about concerns they had about transporting police officers during the protests. The suit says some drivers have religious and moral objections to serving law enforcement.

Anti-Discrimination Laws

Included in these protections are that all employers are bound by anti-discrimination laws that protect workers from unequal treatment based on a protected class to include race, religion, gender, sexual orientation and other classes. Your organization can be in violation if they crack down on certain employees but not others who engaged in the same behavior, or, for example, treating participation in Black Lives Matter protests differently from participation in other protests, such as the Women’s March. In this example you are tolerating some political speech but not others.

Recently, Starbucks risked violating such discrimination laws when it notified and warned employees not to wear any messaging bearing messages of the Black Lives Matter movement, saying its dress code policy prohibits buttons that “advocate a religious, political or personal issue.” The response from some employees was that the company had allowed, and even encouraged, employees to wear LGBTQ buttons and attire supporting marriage equality. Starbucks reversed the policy as public backlash began to mount, announcing instead it would make and distribute Black Lives Matter T-shirts to employees, who would be permitted to wear their own attire supporting the cause until they arrived. Another example, if employers allow workers to wear masks with a sports logos but not with Black Lives Matters logos might find themselves with a lawsuit suit on their hands. The employer cannot be inconsistently enforcing the rules or policies for their employees.

Off Duty: Conduct Unbecoming

If your firefighters make incendiary or offensive comments at protests or on social media, even during nonworking hours, they could violate company harassment or anti-discrimination policies. Employers are required under Title 7 of the Civil Rights Act to provide a discrimination-free workplace, so they wouldn’t only be within their rights to discipline such employees but obligated to do so. The fire department must take actions against their employees or they might be facing some civil rights issue. Employers must have off duty conduct policies to manage these occasions. If nothing is done to curb off duty behavior, the employer can be seen to be complicit and tolerating the behavior. Look for example at the Caucasian women in Central Park berating a Black American birdwatching and calling the police on him. He was recording the event and when her employer saw the video, she was fired from her job (The Hill/MSN 5/26/20) and another women in San Francisco called police on a man writing Black Lives Matter on his own property. Her business is suffering from what she calls a “racist move” on her part. (Huffington Post 6/15/2020). In these cases, if the company didn’t take action they might have some civil rights issues to deal with. If they do not do anything, it demonstrates a possible complicity with the action of their employees.

One other nugget, employers also can’t maintain a record of an employee’s off-duty political activities, and they cannot force employees to share their online activity. Remember you have some protected rights

Finally, this is not a Ready, Fire, Aim situation. Careful deliberation and mindfulness is extremely important in these volatile days. Keep your outrage to yourself and keep your job.

Endnotes

  • Alexia Elejalde-Ruiz – Chicago Times/Seattle Times (6/17/2020)
  • Pickering v. Board of Education, 391 U.S. 563 (1968)
  • Janelle Foskett – Fire Rescue 1 – Firefighters face consequences following troubling social media posts about protests (6/13/2020)
  • Cornell Law School – https://www.law.cornell.edu/constitution/first_amendment
  • Christopher Vondracek – The Washington Times – Starbucks reverses, allows ‘Black Lives Matter’ apparel (Friday, June 12, 2020)

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This commentary reflects the opinion of the author and does not necessarily reflect the opinions of Fire Engineering. It has not undergone Fire Engineering‘s peer-review process.