Appeals Court Rules that City Did Not Violate Maryville Firefighters First Amendment Rights

The United States 6^th Circuit Court of Appeals has overturned a jury verdict in favor of a firefighters union, concluding that the City of Maryville did not violate the free speech rights of the union when it reprimanded the union president.

The convoluted case began back in 2005 when the Maryville Firefighters Association, IAFF Local 4053, engaged a telemarketing firm, FireCo, LLC to do fundraising through the sale of concert tickets. Unfortunately, the telemarketers contacted residents and business in such a way that made it appear the fundraising was for the Fire Department.

When residents complained that the telemarketers made threats and used offensive language, the city contacted union president Michael Doherty, who tried to take remedial action. When the complaints to the city continued, the city issued a written reprimand to Doherty.

The Doherty and the firefighters union then filed Federal lawsuit claiming that the City of Maryville violated their 1^st Amendment rights to free speech and free association. In essence the firefighters’ position was that the discipline was retaliation for the exercise of protected 1^st Amendment free speech and free association. At trial the jury ruled in favor of the firefighters awarding $90,000 in damages. The city appealed the decision to the Sixth Circuit.

The appellate court overturned the jury verdict, ruling that the firefighters were not targeted by the city for exercising their free speech rights.  The court focused on the issue of whether the alleged ‘speech” in this case touched on a matter of public concern. As my friend and colleague Chip Comstock emphasizes over and over again, if a public employee’s speech does not involve a matter of public concern, then there is no protection for it under the 1^st Amendment.

The court concluded that the firefighters, and president Doherty in particular, were not targeted because of the content of their speech, but rather because of the particular fundraising activity they chose to engage in. The court held:

As a matter of law, the conduct in question — i.e., the act of contracting with a third party to make telemarketing calls — did not touch on a matter of public concern. The fact that FireCo callers made incidental, fleeting references to the purpose behind the concert does not change the overall character of the Plaintiffs’ conduct. Our inquiry therefore ends here, and we need not determine whether an overriding state interest would be undermined by the Plaintiffs’ activity.

Here is a copy of the court’s decision, issued Monday.Doherty v Maryville