Yet another online post by a government employee prompts a disciplinary action – showing once again that a government employee does not have the same First Amendment rights as a regular public citizen.
According to the Westchester’s Journal News, Mount Vernon Police Officer Richard Castelhano shared – not wrote – an inflammatory post on his Facebook page that was critical of the Black Lives Matter movement. Castelhano wasn’t suspended but could be suspended or terminated for the sharing the post.
Castelhano isn’t the first police officer to get into trouble on Facebook. A New Rochelle police officer was suspended in July for a Facebook post that told protesters “Don’t call the police when your world is in disarray… figure it out yourself or better yet call Shaun King and Black Lives Matter for help.” A Town of Greenburgh police officer was suspending in April for a Facebook post juxtaposing a photo of blacks in a minivan protesting the killing of Michael Brown in Ferguson MO with one of baboons jumping all over a white woman’s car.
The statements referred to above were the government employees’ personal sites.
Public employees are generally subject to diminished first amendment rights when they are acting in their official capacity and conducting business for the State. A key case in this regard is the 1968 Supreme Court case, Pickering v. Board of Education, 391 US 563 (1968). The Supreme Court held that in the absence of proof of a teacher knowingly or recklessly making false statements, the teacher had a right to speak on issues of public importance without being dismissed from his or her position. The Court elaborated on a two-step process: is the speech a matter of public concern, and if yes, per the Pickering balancing test, the interests of the government employee, commenting on matters of public concern, must be weighed against the State’s interest in effective government. The Court did provide for a limitation: when the speech substantially interferes with the legitimate operations of government it can be regulated.
As we all know too well, pressing the “send” button is very easy, and taking it back once sent it impossible. Kurtis Cook found that out when he posted on Facebook that mass murderer Dylan Rood Roof “needs to be praised for the good deed he has done” in the killing of nine people at a Baptist church in Charleston, South Carolina.
The Mabank, Texas volunteer fire department got rid of Cook shortly after it learned of his post, with the following notice on its own Facebook page: “As of 1123 hrs, after an investigation in the allegations being made of Firefighter Kurtis Cook, the Mabank Fire Department Command Staff has terminated Kurtis Cook as a volunteer Firefighter permanently and has trespassed him from all Mabank Fire Department property. The Mabank Fire Department does not condone nor promote these type of actions or thoughts. On behalf of all members, the Mabank Fire Department offers our deepest apologies to all that were offended by his actions and comments.”
Cook isn’t the only one. Dewayne Hall, a volunteer firefighter for the Richland Mississippi Fire Department posted on his Facebook page a KKK flag along with the words “white power will never die.” He apologized for his racist post, and apparently was not disciplined.
Volunteer firefighters are not government employees when it comes to public speech. While they can be circumscribed when speaking on behalf of the department, they are entitled to free speech in their private capacities. However, this right to free speech can be clarified, and limited, by an effective social media policy which prohibits a member from casting an unfavorable opinion upon the department. A racist post certainly qualifies, while an endorsement of a political candidate on a member’s own social media account is protected.
Department regulations should be specific as to limitations on social media use by members. Members must of course be free to express themselves as private citizens, so long as their speech does not adversely affect the operations of the department, adversely affect the public’s perception of the department, or impair the performance of the departments duties and obligations. Members must be made aware that their speech, at the fire house or elsewhere, may not be protected by the First Amendment and may subject them to discipline and even termination. A social media policy would certainly belong in the SOG’s of a proactive fire department.
