It has been a long wait, but Miami Dade Fire Captain Brian Beckmann finally had his day in court… or more correctly his day before an arbitrator… to review his Facebook related demotion.
Last spring, Captain Beckmann posted a comment that sparked outrage in the community still raw from the tragic shooting incident of a young African American, Trevon Martin, in Sanford, Florida. Amidst demands for his termination, Captain Beckmann was demoted back to firefighter.
The arbitration began on January 14, 2013 and is expected to continue on February 5, 2103. Some interesting facts came out at the first hearing, raising some pretty tough questions.
First of all, Captain Beckmann’s comments were posted on his personal Facebook page while he was off duty using his home computer. At the time he was not identifiable as a member of the department. Can/should a firefighter be disciplined for comments posted in such a manner?
Second, the comments, while offensive, do not specifically reference or denigrate any minority group. Here is the text of his comments: ”I and my co-workers could rewrite the book on whether our urban youths are victims of racist profiling or products of their failed, (expletive), ignorant, pathetic, welfare dependent excuses for parents.” The lack of a direct reference to any minority group directly contradicts much that has been written about the case that refers to the remarks as blatantly racist.
Third, the comments were posted in such a way that they were only visible to roughly 300 of Captain Beckmann’s friends. The comments only became widely known after another firefighter took a screen shot of them and forwarded them on to a blogger who then publicizing them in an inflammatory way.
One would think based on these facts, that the firefighter who caused the posting to go viral should at least bear some responsibility for what happened. Captain Beckmann’s attorney, Matthew J. Mierzwa, Jr., made that very point to the arbitrator, laying the blame at the foot Captain Faye Davis. “We believe that the issue really arose here because of other employees, Faye Davis in particular, taking that herself in violation of county policy to publish it throughout the community. This is Faye Davis’ manipulation.” Captain Davis has not been disciplined for her role in the event.
The First Amendment aspects of this case are of enormous importance. To date, the US Supreme Court’s analysis of public employees’ right to free speech has been anything but coherent.
On the one hand are the numerous Court pronouncements that public employees do not surrender their basic First Amendment Rights by virtue of their employment, nor are they subject to a “watered down” version of protection. But all too often the end result of the cases belies the rhetoric.
Some of the First Amendment issues that are in play in Captain Beckmann’s case:
Was his speech work related or non-work related. Generally a public employee’s First Amendment Rights are the broadest when discussing matters unrelated to work. Arguments can be made both ways in Captain Beckmann’s case. There are cases that say that public employees do not have the right to “insult those they are hired to serve and protect.” Locurto v. Giuliani, 447 F.3d 159, 183 (2d Cir. 2006). Insulting the people you work for can take a case that would otherwise be non-work related and place it back under the realm of being work related.
There are also cases that say that the reason we have a First Amendment is to protect people who say things that will offend people (ie. we don’t need a First Amendment to protect people from saying things everyone agrees with). Consider this: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943). Isn’t punishing Brian Beckmann for saying what he said essentially telling him what is orthodox? …. Hard questions….
Then there is the question of whether his comments pertained to a matter of public concern. Some will argue yes, the cause of the shooting, problems with urban youth, racial profiling, etc. all are matters of public concern even if you disagree with his conclusion. Others will say no, racism or racial insensitivity has no place in public discourse… and should not be given protection under the First Amendment.
Next is the issue of whether Captain Beckmann made the comments as a private citizen. No doubt the captain believes he spoke as a private citizen when he posted his comments, but we have seen other cases where courts have found grounds to conclude otherwise on even less. See San Diego v. John Roe, 543 U.S. 77 (2004), and Locurto.
And then… if we get that far… we have the test of all tests… the Pickering Balancing Test. Stated as succinctly as humanly possible, that test states: If an employee is (1) speaking on a matter of public concern (2) as a private citizen, he must prove his interest “in commenting upon matters of public concern” outweighs the “interests of the State, as an employer, in promoting the efficiency of the public services it performs through its employees”. Got that? Clear as… mud…
And then there is the role of Captain Davis. Is an employee who is offended by a private comment made by a co-worker, who proceeds to make that comment widely known (in this case to millions of people), entitled to protection by the First Amendment? If so, how can Captain Beckmann be denied that same protection?
Are you starting see the problem we are facing with public employees and the First Amendment? Given the emerging role of social media and the internet – this First Amendment quagmire needs to be addressed. We are not living in the 1800s where someone needs to take out a newspaper ad in order to reach hundreds to thousands of people… nor the mid 1900s where someone would have to take out a television ad to reach thousands to millions. This is the age of the internet and anyone can instantly reach millions just by clicking “send”… or pressing “enter” on a keyboard. The law needs to catch up with the technology.
Captain Beckmann’s case may the be one to help us get some closure from the courts on some of these open questions… It almost makes me hope the arbitrator rules against him so the case can move forward through the courts…. but that would not be fair to Captain Beckmann.