Every member of the fire service has heard of at least one firefighter who got into some trouble over something they said via social media.
Regardless of personal preferences or tastes, most of us would agree that social media is here to stay, and firefighters would be well served by educating themselves on the protections they can point to under the first amendment.
"This is not just a firefighter problem, this is a leadership problem as well," firefighter and attorney Curt Varone said during a session on free speech protections this week at Firehouse World in San Diego. "We've got firefighters losing their jobs, we've got chiefs losing their jobs and we've got all of us losing credibility."
Varone is a retired deputy assistant chief with the Providence, RI, Fire Department, is currently deputy chief in Exeter, RI, and has also been a practicing attorney for over 33 years. He lectures on legal issues surrounding the fire service and runs a blog where firefighters can find resources and advice on these issues.
The most important thing Varone wants firefighters to understand is how the first amendment can and will come into play concerning public safety employees posting to personal social media accounts such as Facebook, Twitter and YouTube.
"What we need to focus on is figuring out as leaders and also as citizens when we have a first amendment right," Varone said. "When are we protected and when are we not?"
Varone offered many examples showing how firefighters have found themselves in hot water over issues related to social media:
- Miami-Dade firefighter makes racially charged posts to Facebook about the Trayvon Martin shooting.
- Columbia, SC, firefighter says on Facebook that he'd run down BLM protesters if they shut down a highway.
- Boston firefighter posts a cartoon photo depicting a black man holding the severed head of a white man.
- Charlotte, NC, fire investigator posts racially charged comments about a black-on-white shooting.
- Washington, DC, firefighter suggests racist police be targeted in the wake of an officer-involved shooting.
- Henrico County, VA, firefighter posts racist and sexist comments on his personal Facebook page.
These were just a few of the case studies presented, and the underlying theme here is how a fire department can draw reasonable boundaries without trampling on the first amendment rights of its employees.
"It's not reasonable to say you're prohibited from using social media. That's not going to work," Varone said, referring to prior restraint and how it violates the first amendment. "A fire department cannot prohibit an employee from using the fire department's name or pictures or other things. You have to be very careful in terms of how you word the policy because your policy can be invalid."
"But how do we set reasonable boundaries when it comes to this? Because it's getting worse. It doesn't seem to be getting any better."
Varone outlined three factors when it comes to first amendment rights concerning public safety employees. The first question is whether the comments are a matter of public concern. The second is whether the employee is speaking as a private citizen.
While a firefighter's overall free speech rights are protected as matters of public concern and as private citizens, this does not necessarily mean they would be in the clear when it comes to department discipline—be it suspension, demotion or outright firing.
This is where the tricky part comes in because after it's established that comments fall under those two categories, we arrive at a third called the "Pickering Balancing Test." This test weighs a firefighter's right to speak on matters of public concern against maintaining the health of his or her agency's mission.
You can say the words "free speech" and "first amendment" until you're blue in the face, but if your comments harm or disrupt the mission of your fire department, you have likely gone too far. Varone compared it to yelling "Fire" in a crowded theater.
The complication is ultimately in place because of the human element. A fire chief, an arbitrator or a judge can interpret individual cases in different ways, and a firefighter winds up leaving a lot to chance depending on who handles the matter and makes the decisions on discipline. Two firefighters can violate the exact same policy and wind up with very different outcomes.
"We end up relying on someone to make a decision, and who is that person that's going to make that decision?" Varone asked. "Do you really want to leave it to the umpire? It's a conversation we really have to have with our firefighters because at the end of the day, somebody's got to make that decision."
Varone offered some very simple tips for firefighters when it comes to the things they say on their social media accounts:
- Don't air petty grievances on social media, such as griping over not being promoted.
- Make sure you post as a private citizen and are not perceived as a department spokesperson.
- Don't post anything that will disrupt or hamper your fire department's mission.
- Don't leave it up to the umpire because you're leaving it to chance.
There are also grey areas to consider like posting your rank, department badge or photos of you in uniform on a Facebook page. Does this automatically make you a spokesperson? With no clear precedent in play, it's yet another factor that can be perceived in different ways depending on who handles the matter.
Department leadership also has to be very careful when it comes to crafting policy to avoid running into any issues with prior restraint.
"The courts have been very strict when fire departments and government agencies set policies that go too far," Varone said.
Any fire departments or chiefs looking to implement a sound social media policy can find Varone's policy guidelines here.
