Firefighter’s First Amendment Rights Extends to Emails… Even Ones With False Statements

On Thursday, the Indiana Supreme Court handed down a decision in the email discipline case of firefighter Bradley Love of the Sugar Creek Township Fire Department. Love was a volunteer/part-time firefighter in the combination fire department.

The case arose back in 2006 , when Love sent an email critical of the department’s spending to a small  group involved with a community youth athletic league. The email was sent in response to an email critical of a candidate that Love supported for election as Township Trustee. That candidate ran on a pro-volunteer platform that sought to replace the career fire chief and rein in spending. The April 24, 2006 email stated:

We have 5 new sport utility vehicles that have been purchased in the last 4 years that are given to [career] officers to have free use of. I see them in Castleton, Greenwood and all over the State. We pay for them, gas and insurance. These gas guzzling SUV’s [sic] are being driven home to Anderson, Greenfield, Franklin Township and other area’s [sic] outside of the township every day and YOU pay for it. They do not make emergency runs after 4PM and are just a perk that WE pay for.

A copy of the email made its way to Fire Chief Robert Rehfus who concluded it contained false information. On May 17, 2006, the chief terminated Love for conduct unbecoming a firefighter and lying. The termination letter stated:

While it is every persons [sic] right to support and vote for whoever they so choose, it is totally inappropriate to lie about a person or several persons. One of those persons that you lied about was me in an E-mail to the New Palestine Soccer League. To be specific you stated that I did not make runs after 1600 hours. That would be a lie and you know it.

Love filed suit in state court against Chief Rehfus individually and in his capacity as fire chief, as well as the Township, alleging a violation of his 1st and 14th Amendment rights under 42 U.S.C. § 1983. The trial court ruled in favor of the Chief and the Township, concluding that the 1st Amendment does not protect false statements, and that the Township could not be held liable under §1983 for the Chief’s conduct.

The Indiana Court of Appeals reversed and the matter was appealed to the Indiana Supreme Court. In a well reasoned decision, the Supreme Court concluded that the 1st Amendment does apply to some false statements, and that the Township can be liable for the policy making actions of its fire chief.

The court analyzed the seminal US Supreme Court case, Pickering v. Board of Education, 391 U.S. 563, 566 (1968):

Pickering and its progeny provide a two-step analysis for determining whether the First Amendment protects an employee’s speech. First, the employee must have been speaking as a citizen on a matter of public concern. … If this threshold requirement is not met, then there is no First Amendment retaliation claim. … If the employee satisfies this threshold, then the Pickering balancing test must be applied to determine if the government was justified in “treating the employee differently from any other member of the general public.”

The public employee must first establish that he or she was both (1) speaking as a citizen … and (2) speaking on a matter of public concern…. These two requirements are conditions precedent that serve as gatekeepers for the Pickering balance – they ensure both that the First Amendment is not used to transform every public employee’s work-related grievance into a constitutional case…, and that the judiciary does not become entangled in the day-to-day operational management of the political branches….

We find that Love clearly satisfies the two threshold requirements…. First, Love wrote the email from his home computer while he was off-duty; he was not fulfilling any of his duties as a firefighter. … Love was engaging in speech in which any other citizen could engage. The fact that the email was not published in a newspaper but was quasi-private because it was sent to a limited number of recipients is irrelevant… as is the fact that it addressed a subject related (tangentially) to his employment.

Second, the government’s allocation of funds and resources within the Department was clearly a matter of public concern…. The designated evidence in no way suggests that Love’s email was an extension of any dispute with his superiors. … Rather, Love responded to an email challenging a political candidate’s campaign with an email supporting that political candidate’s campaign, in which he gave his own political opinion.

Even if an employee speaks as a citizen on a matter of public concern, the government employer can restrict the speech if it can carry its burden of proving that the First Amendment interests of the employee and society are outweighed by the employer’s interest in operational effectiveness and efficiency. … But government employees who speak as citizens on matters of public concern “must face only those speech restrictions that are necessary for their employers to operate efficiently and effectively….” To justify its retaliatory action, then, the government must establish that the speech had the potential to disrupt the efficiency and effectiveness of its operations

Although the government employer bears the burden of establishing the potential disruptiveness or the harmful effects of the speech, it is “not required to produce actual evidence of disruption to prevail.”…

The court contrasted Love’s case, to another recent Indiana 1st Amendment case involving a firefighter, City of Kokomo v. Kern, 852 N.E.2d 623 (Ind. Ct. App. 2006). In Kern, the Court of Appeals found that a firefighter’s public statements were not protected by the 1st Amendment because they unduly disrupted the operations of the department.

Love did not make a personal attack upon Chief Rehfus, which would be more likely to cause problems with maintaining harmony and discipline in a public safety organization. …Unlike the fire captain in Kern, Love expressed “his general disapproval of the effectiveness and the financial stability of the local fire department.” … Moreover, Love’s email stemmed from a hotly contested political campaign for public office, whereas Kern’s statements stemmed from a personal grievance over the denial of a fireworks permit.

As for the 1st Amendment protecting false statements, the court reviewed the history of case law on false statements, quoting N.Y. Times Co. v. Sullivan, 376 U.S. at 254 (1964):

To require a critic of the government to verify and guarantee the truth of all facts would lead to self-censorship, thereby dampening the vigor and limiting the variety of public debate, which is in-consistent with the First Amendment.

The court concluded that the inaccuracies contained in Love’s email were not recklessly false nor made with actual malice.

Rather, “[t]he manner in which [they] are false is perfectly consistent with good-faith error, and there is no evidence in the record to show that anything other than carelessness or insufficient information was responsible for their being made.” …. Moreover, like Pickering, the facts that were false were susceptible of verification by the Chief and any other citizen wishing to verify them. The proper response to these allegations was more speech, not employment retaliation.

The final issue in the case was whether the Township could be held liable for the actions of the fire chief. The court concluded there were material issues of fact to be determined at trial over whether the chief was acting in a policy making role when he terminated Love, and that the trial court erred in deciding the case as a matter of law. The case was remanded back to the trail court.

To download the actual case. Love v. Rehfus

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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