Fire Law Blog Fire Service and Public Safety Legal Issues Blog by Curt Varone
Today’s burning question: I made a movie on my off-duty time that some may consider… I don’t know… inappropriate… vulgar… raunchy. It was definitely not pornographic, it just had some ladies that did not have a lot of cloths on and it dealt with drugs – but it was a crime drama.
Well, when my fire chief found out about it he fired me. Don’t I have a First Amendment Right to do things like make films?
Answer: You do, but….. there are a few caveats. The first is this crazy case from San Diego involving a police officer who was making and selling X-rated videos, San Diego v. John Roe. Interesting case – thankfully it was a cop not a firefighter… because… well, you'll have to read it yourself.
Unfortunately for you, the SCOTUS in Roe did not take what could have been the easy way out by saying that because pornography was involved, the officer had no First Amendment Rights implicated. Instead, the Court said when an employee engages in speech that does not involve a matter of public concern and it is detrimental to the department (moral-wise, discipline-wise, etc.), then the department can discipline the employee… ie. the person's First Amendment Rights would not be violated. In your case the question will most likely be – would the video be detrimental to the mission and function of the fire department.
The next issue is that you have to do it as a private citizen… and not in a way that makes it look like the fire department endorses it, or that you are a spokesperson for the department. That should be easy… I mean – you can’t be on duty or use fire apparatus or the fire station to film… What’s that??? They say you used the fire station to film? Seriously?
Baton Rouge firefighter Dewey Allen is fighting for his job back after having been fired over a film he made called Mississippi Shakedown. Allen’s attorney, Floyd J. Falcon, was quoted as saying in an appeal to the Municipal Fire and Police Civil Service Board "The department is attempting to censor the off-duty activities of its firemen and impose its perceived moral standards on its fireman."
The question remains about whether a fire station was used in the filming, something Falcon claims he sees no evidence of.
