A Houston firefighter has been placed on administrative duties as the department investigates offensive anti-Islamic posts on his personal Facebook page. The unidentified firefighter allegedly made the posts last month drawing the attention of KTRK TV Channel 13, who in turn brought them to the attention of the fire department.
The posts prompted the TV station to obtain a legal analysis from “KTRK Legal Analyst, Joel Androphy” who told listeners “Your rights of freedom of speech and freedom of expression stop when you work for somebody, to the extent that there’s policies in place.”
For the sake of my readers, perhaps Mr. Androphy’s quote was taken out of context. I am sure what he intended to say was more in line with what the US Supreme Court has REPEATEDLY said: “The Court has made clear that public employees do not surrender all their First Amendment rights by reason of their employment. Rather, the First Amendment protects a public employee’s right, in certain circumstances, to speak as a citizen addressing matters of public concern.” Garcetti v. Ceballos, 547 U.S. 410 (2006)
Even more recently, the SCOTUS said: “this Court has cautioned time and again that public employers may not condition employment on the relinquishment of constitutional rights” Lane v. Franks, No. 13-483 (U.S. June 19, 2014).
Whether the comments in question are deserving of First Amendment protection, or whether the rights of the Houston Fire Department to manage its reputation in the eyes of everyone in the community (including Muslims) will prevail – falls under the venerable Pickering Balancing Test. Simply stated the Pickering Balancing test is as follows:
If an employee is (1) speaking on a matter of public concern (2) as a private citizen, he must prove his 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.” Pickering v Board of Education, 391 US 563 (1968).
Have I mentioned recently how absurd the Pickering Balancing Test is? Its one of those rules that in theory sounds wonderful, but in the real world where fire chiefs and firefighters live – it is just ridiculous. Why?
If you are a judge – you probably don’t see any problem with the Pickering Balancing Test what so ever. Its a wonderful test – perfectly logical. After a public employee has made a regrettable remark, his employer has punished him, and a law suit is filed – you can do what you do best: sit in judgment of what was done… Of course that is AFTER THE FACT. But what could be better and one of the nice things about the Pickering Balancing test is it gives you plenty of discretion… almost like the old Major League strike zones before we had the “Zone Evaluation System”… well, you know… each ump had their own strike zone… to accommodate their individual philosophies about the game. Under the Pickering Balancing Test each judge has an awful lot of discretion in balancing those competing interests.
If you are a law school professor, the Pickering Balancing Test is just as wonderful. It gives you alot to talk about in class – and you can come up with wonderful hypotheticals to dazzle your bright young students.
But in real life, how does a fire chief incorporate the principles embodied in the Pickering Balancing Test into a coherent policy that firefighters can be expected to understand and follow? In other words – how can a fire chief help PREVENT firefighters from getting themselves in trouble in the first place? Reread the Pickering Balancing Test again. How does one incorporate the basic tenants of that test into a formal policy without being unconstitutionally vague and thus violating the Due Process Clause? It can’t be done. The fire chief’s hands are tied.
And what’s more – attempts to draft policies that try to draw a line about appropriate and inappropriate speech are often struck down as being a “prior restraint”. Its as if the courts are saying: Mr. Fire Chief – you cannot try to warn your firefighters what they can and cannot say… but we will give you free reign to fire them when they go too far.
That is why IMHO the Pickering Balancing Test is a disservice to public sector leaders in general, and fire chiefs in particular. And BTW it doesn’t do much good for firefighters either – who are left to wonder whether they can comment on certain current events (as millions do on Facebook) or if they might be fired. I suppose you could say that firefighters are like batters in a baseball game where they don’t know where the strike zone is – and that is not right.
Thank you. My Pickering Balancing Test rant for tonight is over.