Bourne Firefighter Alleges Free Speech Violation in Facebook Termination Case

The Bourne, Massachusetts firefighter who was fired last February for a series of postings on Facebook has filed suit in Federal court challenging his termination and alleging that the Town violated his 1st Amendment rights.

Richard Doherty was terminated on February 23, 2011 for allegedly posting demeaning, offensive and untruthful statements on Facebook. The comments were said to have disparaged other firefighters, the police, the town and the fire department.  The town also alleges Doherty was evasive during questioning and his sworn testimony was “contrived and contemptuous.”

Doherty filed suit against Town Administrator Thomas Guerino and the Town of Bourne alleging they violated his right to free speech by disciplining and firing him for his posts. He claims his Facebook comments were protected speech.

His lawyer, Harold Lichten, was quoted as saying: “From our perspective, this is like an employee going out to a bar after work and venting about (his) workplace,” again demonstrating the wide difference in perspectives on social media use. Recall NLRB attorney Lafe Solomon who referred to Facebook as the new “water cooler”.

The problem is that posting comments on Facebook or other social media sites looks a lot more like saying something on television than having a private conversation.  It can be seen by millions of people and a permanent record of what was said is created. That is hardly a private conversation or even a conversation in a crowded bar after work.

Courts today are struggling with cases such as this, and this suit may prove to be one of the pivotal cases that help shape the direction that the law will take in dealing with social media cases. It is certainly one to watch.

Just to review the law on First Amendment cases: municipal firefighters have a right to free speech that cannot be infringed by their employers. However, the right only applies to comments that involve a matter of public concern. Comments that are in the nature of a private grievance are not entitled to 1st Amendment protection.  That may be Doherty’s first obstacle. 

Second, the comments must be made in a person’s private capacity, not while acting as a public employee. That should not be a problem for Doherty – although a closer look at the facts might show otherwise. Coincidentally,  one of the leading cases on public versus private speech is from Massachusetts,  Foley v. Town of Randolph.

Third, municipal employers have the right to place reasonable restrictions on employees activities (including social media activities) so long as the restrictions do not violate any laws or the Constitutional rights of the employees… AND so long as the restrictions are lawfully adopted. In states with collective bargaining rights, such restrictions may have to be negotiated, or at least adopted pursuant to state labor laws. Also, the restrictions may not infringe on the right of employees to engage in concerted activities. The NLRB took a position in a recent case from Connecticut that overly broad restrictions could violate employee rights… but the scope of that right has not been fully developed.

Lastly, an employee does not have a right to engage in speech that causes actual harm or disruption to the operations of his or her employer. This may be Doherty’s toughest hurtle to clear.

 More on the suit.

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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