Palm Beach County Social Media Policy and Discipline Upheld

A lawsuit challenging the validity of Palm Beach County Fire Rescue’s social media policy, together with the discipline imposed on two captains, has been dismissed for the second time.

Captain AJ O’Laughlin and Captain Crystal Little filed suit in state court last year claiming their social media-related discipline should be overturned, and that the social media policy violated the First Amendment. The case was removed to federal court where US District Court Judge William P. Dimitrouleas ruled last January the complaint failed to “sufficiently allege[] that the speech at issue related to a matter of public concern, rendering the Complaint due to be dismissed.” More on that ruling.

Captains O’Laughlin and Little then filed an amended complaint. On July 6, 2020 the court dismissed the plaintiffs’ allegation that “as-applied” the Social Media Policy violated the First Amendment. The court also concluded the policy did not constitute a prior restraint on speech. The sole remaining issue in the case was the so-called “facial challenge to the Social Media Policy”.

Both sides moved for summary judgement on this remaining “facial challenge” issue. In ruling on the issue, Judge Dimitrouleas wrote:

  • Plaintiffs argue that the Social Media Policy is unconstitutional due to both its overbreadth and its vagueness.
  • The Court will address each challenge in turn.
  • Here, the Court finds that the Social Media Policy does cover speech that could involve matters of public concern.
  • Information that could affect the public’s perception of the Fire Department or information that Fire Department come in contact within the course of their employment could certainly include matters of public concern when considered a broad range of future expression.
  • When balancing the interest of potential audiences and present and future government employees with the interest of the government, the Court notes the important public interest in the efficient and effective functioning of government offices.
  • Further, in the “quasi-military” context, such as a fire department, the Eleventh Circuit has “afforded public employers greater latitude to burden an employee’s rights, particularly when the exercise of that right impacts discipline, morale, harmony, uniformity, and trust in the ranks.”
  • The sweep of the Social Media Policy appears to be narrower than the policy struck down by the Fourth Circuit in Liverman v. City of Petersburg which prohibited the the dissemination of any information “that would tend to discredit or reflect unfavorably upon the [Department] or any other City of Petersburg Department or its employees” and further states that “[n]egative comments on the internal operations of the Bureau, or specific conduct of supervisors or peers that impacts the public’s perception of the department is not protected by the First Amendment free speech clause.”
  • In the present case Plaintiffs’ speech, in posting a picture of an internal calendar, was proscribed by the Social Media Policies prohibition on disseminating “disseminate any information (data, text, photographs, audio, video, or any other multimedia file) to which they have access to as a result of their employment without written permission from the Fire Rescue Administrator or designee.”
  • Plaintiffs statements that a fellow   captain was a “thief” and that a staffing officer was “fucking stellar” who “blindly approves” what is before him, could be “reasonably interpreted as having an adverse effect on Fire Rescue morale,” and as “unprofessional… comments” that tend to undermine the public trust and confidence required by employees.”
  • As such, it is not clear the plaintiff may even raise a successful facial vagueness claim.
  • Accordingly, it is hereby ORDERED AND ADJUDGED as follows:
  • Plaintiff’s Motion is DENIED. Defendant’s Motion is GRANTED. Judgment shall be entered separately.

Here is a copy of the decision:

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.
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