Termination of Boston Firefighter For Offensive Posts Upheld

The ongoing saga of Boston firefighter Octavius Rowe suffered another setback as the Massachusetts Court of Appeals upheld his 2018 termination for making a series of racist and homophobic social media posts. Rowe, who served as vice president of Boston’s Vulcan Society, claimed he had been singled out for discipline for his posts while the city ignored comparably offensive posts by white firefighters.

The Massachusetts Civil Service Commission upheld Rowe’s termination, prompting him to appeal to Suffolk County Superior Court. Superior Court Judge Michael P. Doolin agreed with the Civil Service Commission, prompting Rowe to seek relief from the Court of Appeals.

The Court of Appeals affirmed the Civil Service Commission and Judge Doolin. In doing so the court provided a good review of First Amendment law as it applies to social media posts by firefighters. Quoting from the decision (with quotation marks and citations removed to facilitate reading):

  • Rowe claims that the commission’s decision was not supported by substantial evidence, and that it was arbitrary, capricious, and otherwise not in accordance with the law. We disagree.
  • Here, the commission affirmed BFD’s decision to terminate Rowe’s employment as a firefighter based on violations of several of the BFD’s rules including those prohibiting discrimination, harassment, and use of abusive or threatening language, as well as their rule regulating the use of social media platforms.
  • The commission conducted a detailed evaluation of the abundance of evidence from Rowe’s social media posts that attacked others based on their religion, sexual orientation, and race.
  • The posts, many of which Rowe admitted to having authored, employed abusive, threatening, and offensive language.
  • It was reasonable for the commission to find that all of Rowe’s statements and posts constituted conduct unbecoming a firefighter, and prejudicial to good order, whether made on or off duty.
  • Rowe also made a variety of First Amendment claims related to his termination, some of which are not properly before us.
  • In an argument that is properly before us, Rowe claims his right to free speech was violated because he was terminated for his social media posts. We disagree.
  • In general, a public employer may not discharge an employee on a basis that infringes that employee’s constitutionally protected interest in freedom of speech.
  • However, a public employee’s rights are not absolute, and the employee must accept certain limitations on their freedom of speech.
  • To determine where those limitations exist, we apply a two-part test. Initially, we determine whether the employee was speaking as a citizen upon matters of public concern when making the statements at issue.
  • If so, then we must arrive at a balance between the interests of the employee, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.
  • In performing that balance, the question becomes whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public.
  • Here, both the commission and the judge assumed that Rowe was speaking as a citizen on matters of public concern. From there, the inquiry became whether the BFD had an adequate justification for treating Rowe differently from any other member of the general public.
  • The judge properly determined that because Rowe was a government employee, the BFD — as a government entity — “has broader discretion to restrict speech when it acts in its role as employer, but the restrictions it imposes must be directed at speech that has some potential to affect the entity’s operations.
  • The BFD and its employees hold trusted positions in the community. In those positions, firefighters must serve all residents of the city, regardless of their religion, sexual orientation, or race. As the judge explained,
  • “The hateful, derogatory statements made by Rowe lowers the public’s estimation of the BFD in the eyes of city residents, especially those who identify as members of the groups Rowe targeted.
  • Consequently, while Rowe may have been speaking on matters of public concern as a citizen, his statements impair the proper function of the BFD, in that they erode the public’s trust in the BFD, and his speech is not constitutionally protected.”
  • Rowe posted numerous statements that were detrimental to the reputation of the BFD within the community it serves.
  • The posts were hateful, discriminatory, and, in at least one instance, violent.
  • This substantial misconduct provided just cause for Rowe’s termination.
  • Rowe did not carry his heavy burden to establish that the commission’s decision was not supported by substantial evidence, or that it was arbitrary, capricious, or otherwise not in accordance with the law.

Here is a copy of the decision, issued today.

About Curt Varone

Curt Varone has over 45 years of fire service experience and 35 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, 4th ed. 2022) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
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