ACLU Steps Up For NH Firefighter

A New Hampshire firefighter who was fired in 2015 over a Facebook discussion, just got some good news: the American Civil Liberties Union is taking up his cause.

Alex Morin was terminated from the Farmington Fire Department on July 21, 2015, just days after he and another firefighter questioned the appropriateness of citizens posting incident related comments on the “Farmington Community Forum” Facebook page.

On July 18, 2015 Morin took issue with citizens discussing an active incident on the Community Forum, admonishing the posters “[p]eople’s personal emergencies don’t need to be put on Facebook” and “It should not be a conversation on Facebook.”

Morin’s comments sparked a backlash from the posters. A complaint was filed with the town prompting the Farmington Board of Selectmen to fire Morin and firefighter Dave Sowards for violating the town’s social media policy. The board concluded that the firefighters’ comments “negatively affected the public’s perception of the Department or Town”.

Morin filed appeals with Fire Chief James Reinert, Town Administrator Arthur Capello, and the Selectmen, each of which was rejected. Last year he filed suit in US District Court alleging wrongful termination, violation of his free speech rights under the First Amendment, and the violation of a New Hampshire statute that provides public employees with greater free speech rights than available under the First Amendment.

Here is a copy of the complaint: Morin v Farmington

Last week, the ACLU of New Hampshire filed a 20 page amicus brief in support of Morin, calling the town’s social media policy unconstitutional “on its face” and advising the court: “This is not a close question.”

The ACLU brief summarizes three primary arguments:

  • First, the [Social Media] policy is hopelessly overbroad under the First Amendment and effectively bans speech simply because the Town disfavors it.
  • Second, [the Social Media policy]’s “negatively affect the public perception” of the Town standard is impossibly vague.
  • Finally, [the Social Media policy] on its face, violates [New Hampshire Revised Statute] Chapter 98-E. RSA 98-E:1 states that “a public employee in any capacity shall have a full right to publicly discuss and give opinions as an individual on all matters concerning any government entity and its policies.” RSA 98-E:2 is even broader, stating that “[n]o person shall interfere in any way with the right of freedom of speech, full criticism, or disclosure by any public employee.” Despite the language in Chapter 98-E, [the Social Media policy] explicitly prevents a public employee from speaking in his or her individual capacity on matters of public concern that cast the Town in a negative light. Chapter 98-E contains no such limitation and, in fact, explicitly encourages such critical speech to promote government accountability.

For those interested in the First Amendment and how it applies to social media posts, the ACLU’s brief is an excellent primer. Here is a copy of the brief: FarmingtonACLU Brief

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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