NC Facebook Post Results in Two Cybercasualties

A social media post advocating the extermination of immigrants being held in detention camps has impacted two North Carolina firefighters, a father and a son, and two different fire departments. Caleb Folwell was a career firefighter at the North Chatham Fire Department. His father, Jeff Folwell, was the fire chief of the Julian Volunteer Fire and Rescue Department.

Caleb made the post on Facebook stating: “They should exterminate all captive right now and broadcast it over Mexican National TV to send a message if you cross illegally you die.” Dave Statter has a lot more on this, so I won’t repeat all the details here. Here is a news video about the story.

My take is the story is this: The First Amendment provides protection for the free speech rights of public employees, but it has its limits. Unfortunately, those limits are not well defined and even less well understood by firefighters.

Firefighters need to know where the line is so they know what speech has protection and what does not. Perhaps even more importantly, fire service leaders need to know where the line is so they know when they can and when they cannot discipline firefighters for their speech.

A lack of understanding of the First Amendment creates an environment where fire service leaders ignore unprotected speech that SHOULD BE COUNSELED… which in turn sets the stage for firefighters to mistakenly believe they can post virtually anything with impunity.

So where is the line?

The most important case to help us understand the First Amendment as it applies to public employee speech came in the 1968 US Supreme Court case of Pickering v Board of Education. The simplest explanation of Pickering that I have seen is as follows:

• Public employees have protection under the 1st Amendment when they are speaking on a matter of public concern as a private citizen, and their 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.”

That explanation, often referred to as the Pickering Balancing Test, has three moving parts that must be evaluated to determine if the speech is protected:

1. The speech must involve a matter of public concern
2. It must be made as a private citizen
3. The employee’s interests must outweigh the employer’s interests

When it comes to clarity, the Pickering Balancing Test leaves a lot to be desired. Each of the three points can become a point of contention in a disputed case. None of the three points are supported by clear guidelines. Rather, the vagueness inherent in the Pickering Balancing Test is a limitation for fire chiefs when drafting effective social media policies, and firefighters understanding where the line is. However, until the Supreme Court revisits the issue, it is all we have.

A number of federal cases have added an important perspective to the third element, the balancing of interests. Cases hold that even if public employee speech involves a matter of public concern and even if said as a private citizen – if the speech causes actual harm or disruption to the mission & function of the employer, there is no First Amendment protection. In this regard, speech of a racist or discriminatory nature has been found to be unprotected when it causes actual harm or disruption.

Two additional bright lines have also started to emerge when it comes to firefighter social media cases. Firefighters can lose First Amendment protection for:

1. Speech that threatens violence or harm or encourages others to commit violence/harm to any person or group
2. Speech that threatens to or encourages others to withhold public safety services from any person or group

Applying these principles to the Folwell case, a strong argument can be made that the comments about exterminating immigrants is enough to cause actual harm or disruption to the mission and function of the fire department. To be blunt, there are people who may need help that after learning of the post may be afraid to call for it out of a fear of having the “exterminators” responding into their homes. Creating such a fear through social media posts therefore interferes with the ability of the fire department to fulfill its mission and function.

In addition, the speech in question threatens and/or encourages harm to a group of people. As such, it is inconceivable that such comments would have First Amendment protection.