Another Facebook Question in Florida

Just a month after a Miami-Dade firefighter created a racially charged controversy with statements posted to his personal Facebook page, a second Florida firefighter finds himself under the microscope for comments he made about the citizens he serves.

Eric Johnson is a firefighter with the Hialeah Fire Department, and vice-president of the Hialeah Association of Firefighters, IAFF Local 1102. He is under investigation by the department for having posted a number of comments on his personal Facebook page that Mayor Carlos Hernández believes suggest a lack of sensitivity toward the people of Hialeah. Among the comments of concern:

  • A photo of a man riding a motor bike with a goat on his back, to which Johnson commented “only in Hialeah, LOL”.
  • “I have a system. Just add an ‘o’ to any English word and bam! It works. For example, how ya doin ‘o’ You wanna go to the hospital ‘o’ I just learned that you can’t do that when you say is this your home though. Ha Ha.”
  • “Ha Ha Ha… Jew forgot dat I hab da Medicare… Jew must talk me.”

Johnson claims the investigation is actually political retaliation for his criticism of the administration. He also defended his comments: “These aren’t stereotypes, this is reality. If anyone is stereotyped, it’s me in Hialeah… I’m married to a Cuban. My best friend is an African-American. Anything else?”

The investigation took an unexpected turn last week when someone viewing his Facebook page, observed photos of Johnson’s under-aged sons with alcohol, and forwarded them on to Hialeah police who have launched a separate investigation.

Part of my concern with this case, and with the case of Miami-Dade firefighter Brian Beckmann, is that the scope of First Amendment protection that public employees enjoy when making a social commentary on Facebook and other social media web sites, is actually quite a bit narrower than many people realize. It creates a challenging area for both firefighters and fire chiefs alike.

There is a saying that the First Amendment is intended to protect unpopular comments, because no one needs protection when they say something that everyone agrees with. However, when comments go beyond simply being unpopular and cross over into causing actual harm, there is no protection. In the middle is a vast grey area… a First Amendment “No-Mans Land”.

The challenge is – how are public employees supposed to manage that distinction BEFORE HAND… before they post? Courts are comfortable wrestling with these distinctions AFTER THE FACT, and judges often disagree where a particular case should come out. Given that reality, how are non-judges… non-lawyers… average folks including firefighters and fire chiefs supposed to navigate this thorny area BEFORE HAND?

We will be discussing these issues and more in the Strategies for Managing Fire Departments in The Digital Age class.

 

 

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
  • Legeros

    Curt,

    This is a question that I posed to Dave Statter, in his posting about this story:

    So are Facebook postings by public servants such… easy pickings that stories such as these will just grow and grow and grow? Will get to a point where the advice becomes “don’t post anything you’re not prepared to defend?”

    Is that where we’re headed, Curt? Or will Some Legal Thing head that trend off at the pass??

    • Legeros

      Great question. I think the US Supreme Court owes it to all of us to clarify the boundaries of First Amendment protection for public employees.

      The current analysis that courts are supposed to apply is called the Pickering Balancing Test. Here it is:

      If an employee is (1) speaking on a matter of public concern (2) as a private citizen, they must prove their interest “in commenting upon matters of public concern” outweighs the “interests of the State, as an employer, in promoting the efficiency of the public services it performs through its employees”. If they do, then their speech is protected by the 1st Amendment. They cannot be disciplined… nor can their employer restrict their speech.

      It is a brilliantly wonderful framework if you are a Federal Court judge – who has the luxury of second quessing (Monday morning quarterbacking) what someone has already done, or you are a law school professor who can deal with hypothetical cases.

      But how are firefighters supposed to apply it in their daily lives? And how are fire service leaders supposed to draft and enforce policies to head off these kinds of problems?

      Don’t get me wrong – I am confident that the social media policies I write for my clients are solid – but this is a tremendously difficult area. People ask me all the time – does it have to be so complicated? Right now, yes it does because if you restrict employee use of social media too much you will violate their 1st Amendment Rights, and if you don’t provide reasonable limits then you open yourself up to problems like this.

      That complexity is causing many FDs to forgo adopting policies and leaving an already ambiguous area even more ambiguous. Beyond adopting a policy – our firefighters need training (initial and on-going) to address the boundaries of what is and what is not appropriate. When I say training – I do not mean the kind of training where firefighters are taught “You can do A, B and C but don’t do D and E” … that kind of mindless training won’t work here. We need training that engages firefighters in discussions about recent cases so they can think through the consequences.

  • ERIC JOHNSON

    Curt,
    So you have the opportunity to know how I reacted to this whole media circus..

    Ten years ago I chose to serve the residents of the City of Hialeah. Hialeah is my home and its residents are my family. In my time serving the residents of the City, I have done so upholding the highest of professional standards, as evidenced by my personnel record. More importantly, I deliver essential services with an honest, heartfelt concern for those… that call. I don’t count how many lives I have touched or saved in my career, it is my duty to do so, and a duty I truly love. That is who I am. And those that call, have always been grateful, and for that, I am humbled.

    In addition to my duty to provide care, I have also performed my civic duty in our City, specifically holding elected officials to their word. Because of that, I have now become a political target. Worse than that, my integrity as a person, and most importantly, as a father, has been called into question by pictures and comments that are, on their face, clearly tongue-in-cheek. A spectacle has been made of this “investigation”, that serves no purpose other than damaging my reputation. There is no precedent for calling a press conference to announce an “investigation” into a personnel issue dealing with a low level public servant. None.

    Speaking your mind has a price. I understand that now. And comments made in jest, in writing, can be misconstrued. The same goes for some pictures. This is especially true when you point out elements of corruption and incompetence with those in POWER. That being said, I am confident that this “investigation” will conclude that I have provided services to the residents of Hialeah at the highest level. Unfortunately, that will come after another unjustified waste of taxpayers money. Until then, I will do what we firefighters do, help people, as many as we can, as best we can.
    Also please take the time and View this video and you will then see why I have become such a political target.
    http://www.youtube.com/watch?v=v200V0GchTQ

    Fact of the matter is that in the anonymous letter it states this speech, The fact that I am vocal against the current administration and other non-relevant items. Some will say that we as public servants are held to a higher standard, and they are right. Our higher standard is our LIVES!!! Are there two sets of constitutions that I do not know about?? Just because I am a public servant i do not surrender my constitutional rights..

    • Thanks Eric

      Your situation is a poster-child for why the Supreme Court needs to better clarify the boundaries of the First Amendment for public employees in a PRACTICAL way.

      Do public employees lose the right to engage in social commentary? Or can they only engage in politically correct social commentary, devoid of satire, jokes or any postings that could offend others?

      And are those public employees who do criticize elected officials subject to having their Facebook/social media comments scrutinized unfairly… comments that many people make – and only become an issue when someone decides to make them an issue?

      Your comment “Just because I am a public servant i do not surrender my constitutional rights” is right on – it has been stated and restated in US Supreme Court cases… but at the end of the day the cases often come down against the employee… There are limits to the First Amendment but the boundaries are unclear.

  • Take a look at this story – goes to show just how far some will go in the name of politics:

    http://www.politicalcortadito.com/2012/05/12/1138/

    http://www.politicalcortadito.com/2012/05/13/another-sign-of-support-for-slick/

  • Marc Landino

    Brother,

    While your right to free speech is garanteed by the constitution. I however disagree with some of the comments you made.
    Its in poor taste to make fun of the city and the tax payers who have afforded you a good career.
    I suggest you learn some Spanish if you feel the need to use the “O” to communicate. The people who call you to serve them are entitled to that service as they do pay for it.

    Fraternally

    Fraternally

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