First Amendment, Tattoo Policies and Religion

Today’s burning question: In your July 2, 2015, post on the legality of a no-show tattoo policy, you included the following: “Consider this quote from the US District Court for the Northern District of Texas in the case of a police officer challenging his department’s tattoo policy: “A police officer’s uniform is not a forum for fostering public discourse or expressing one’s personal beliefs.” Riggs v. City of Fort Worth, 229 F.Supp.2d 572 (N.D. Tex. 2002).”

Would this interpretation prevent (or at least discourage) police officers, firefighters and EMS personnel from proselytizing while in uniform?

Answer: The Riggs case was decided based upon the First Amendment. As currently interpreted by the US Supreme Court, the First Amendment offers public employees no free speech protection unless they are speaking as a private citizen on a matter of public concern. As the Riggs case aptly point out, when in uniform a public employee’s right to express him/herself can be taken off the table… tattoo-wise, patch-wise, pin-wise, political button-wise, and proselytizing-wise as well.

However, that is not the only legal consideration in play with your hypo. Just because a department can limit what a police, fire or EMS employee is constitutionally allowed to say and do on duty, does not mean an employee has no recourse.

If white FFs are allowed to wear non-uniform pins (say a pro-military pin… maybe “semper fi”) and an African American FF wears a “black lives matter” pin – then race discrimination is on the table if the fire chief tries to discipline the black FF. In the same way, if Christian firefighters are permitted to adorn their fire helmets with religion-themed reflexite, the fire chief cannot discipline a Muslim firefighter for similarly adorning his/her helmet with religion-themed reflexite.

To specifically address your question, if a fire department tolerates employees of one religion proselytizing while in uniform, it cannot stop employees from other religions from proselytizing while in uniform. To avoid this problem from occurring, the safest bet is to do what the police department in Fort Worth did with regard to tattoos – prohibit all proselytizing while on-duty and/or in uniform.

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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