Fire Bloggers and the 1st Amendment

Today’s burning question comes from a firefighter blogger who is in college studying fire science, and will be looking for a full-time job in the near future:

Burning question: Could blogging become an issue during the hiring process? Could I be passed over for a job just because my background check shows that I blog and for whatever reason, they don’t like the content. Is that legal? I’ve always assumed that what I say on the Internet is covered by my 1st Amendment right to freedom of speech, but is it really?

Answer: It all depends. The 1st Amendment does offer some degree of protection to folks who blog, but it does not protect people from all forms of adverse employment actions, including employment hiring decisions.

First of all, blogging is an exercise of free speech and is entitled to the same protections as any other form of speech. If an applicant is rejected solely because he blogs, that would be a 1st Amendment violation.

First Amendment protection is broadest when someone discusses things that have no relationship to their employer, prospective employer, or their employment. For example, if you go on a blogging campaign to advocate making chess an Olympic sport, or have golf declared a non-sport, it has no connection to the fire service and should not be grounds for a fire department to take an adverse job action against you (note – a private sector employer could use that against you because they do not have to respect the 1st Amendment rights of their employees or applicants). People have a right to advocate what they choose to advocate.

The issue becomes more complicated when someone blogs about a topic unrelated to an employer/job, but that has an impact on the person’s fitness for a given position. There was a US Supreme Court case, Roe v. San Diego, involving a San Diego police officer who was terminated for making and selling X-rated videos in his off-duty time. The officer claimed his termination violated the 1st Amendment because it was a form of speech and had nothing to do with his employer or employment. The US Supreme Court held that while arguably the videos had nothing to do with his employment (although in his case there may have been some factual question that it did), an employer can take an adverse job action against an employee when off-duty “speech” impacts the discipline, morale and reputation of the organization.  

First Amendment protections are also quite broad when speaking as a private citizen about a matter of public concern. For example, speech that relates to public safety, corruption in government, or the need for ethical reforms would all be matters of public concern – and are protected by the 1st Amendment even when they impact an employer. However, the problem a blogger may find is that even when speaking about a matter of public concern a prospective employer might make a decision not to hire them based on the content of a blog, and attribute the decision to some other factor. In that case even though the 1st Amendment may apply in theory – it is of little use because there is no way to prove that the employer violated your 1st Amendment rights.

The best advice is to be careful what you blog about. I am not talking about self-censorship out of fear – but rather out of thoughtfulness and respect for others. Think through what you have to say – say it in a respectful way, and you should be fine. You do not want to have to sue to get a job!!!