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.
Terrific analysis of a complex case. It certainly seems that if there is grounds for punishment, it should apply equally to the captain that actually published it.
Curt, I just saw this on my FB page. Any comment on how this is going to affect things, past and present?
http://living.msn.com/life-inspired/the-daily-dose-blog-post?post=4604925c-870c-4971-b2ae-207b19b7f33b
Thanks Jim
Someone else had sent me the post – and it squares 100% with what we have been teaching.
The NLRB is a major player in governing what a FD can and cannot regulate in terms of employee speech. In some respects the NLRB protections extend beyond what the 1st Amendment gives – so a social media policy has to address the concerns of both.
I may sound like a broken record – but a social media policy is not a one size fits all proposition – it needs to be customized for a particular department based upon alot of different factors. It also needs to be reviewed and updated regularly (3-6 months tops) because the law is evolving.
I am just concerned that the Captain spoke for the rest of his co-workers, and that mistake causes him to travel a fine line. Here is my point , if the same Captain got caught with prostitutes or drunk driving his behavior can be used to decide his employment outcomes or whether he will stay gainfully employed. There are some extremely good points mentioned on this blog for the Captains defense, but it also leaves a lot of things open to interpretation. Like Faye Davis and the Mayor Gimenez being blamed for this Captains judgement…this is a domino effect of his stupidity to post something like that which is then left up to so many interpretations, all mostly negative.
In my opinion even if race was NOT indicated, still,the way he wrote the post regarding this case in particular, he used his co-workers as a Universal thought process- which would entail from the Captains point of view included even Faye Davis views things like he does, and she proved him incorrect.
The internal issue is Faye Davis reported him indirectly or directly. Yet, she did not create this scenario…what is a 7 day suspension gonna be worth to her at this point. The captain blurred the lines himself becuz he could have not been a loose cannon and just not posted that at all. The Mayor Gimenez had a crisis to deal with after the fallout and whether he was running for office is neither here nor there because the blacks who were outraged are not giving any indication they would have voted for him regardless of the Captain and his postings on Facebook. Quite ignorant and arrogant to think that the Mayors re-election is about the fire Captain(hilarious). For whatever strange reason the union and his lawyers used Faye Davis and Mayor Giminez as ponds, its like grasping for straws. They werent the outside cues that caused the captain to lose himeslf emotionally to post his tirade or beliefs and indumbness he claims he stood by the context.
Shorty the Supervisor didn’t have to buckle under pressure and demote him, but Shorty the supervisor did so to give the Captain an appeal right later because he can lose rank but to do so without the due process makes the Captain eligible to fight it…Bottom line is his supervisor Shorty set him out to dry because Captain Beckman had slipped and let out the secrets he wasn’t supposed to…For example: My mother is from Mississippi, and she said everyone in the entire city was a klu klux klan member, you couldn’t report anyone because at sundown you would have a cross burning on your lawn and firefighters included would let your house burn down. Captain Beckman was speaking in code word to his followers and forgot to filter his comments to certain people who think like him on the force and he cant simply come out of uniform but be speaking from a uniform point of view which he did in disrespect of fellow workers. There is just too many unanswered questions like you implied and trying to put any and all of them together under the law given what he wrote is not going to fare well for him at all- I see minor victories but he’s branded already and the distraction sullies the profession. This opens a cesspool up and the city can be going thru all types of records to give the impression he wasn’t fair on the job as a Captain as well. The union can’t help this guy, and lawyers will help for free publicity and money so he’s already in a bad place, and its not looking good. this is the case of the written/unwritten rule that gets you in trouble…LOL, its sooo ambiguous that one should not be so dumb to get caught up especially when the city has to do damage control
Thanks Angelo
All fair points – but please do not confuse the free speech issue with other revolting behavior (prostitutes or drunk driving).
As revolting as it may be – speech is speech, and the First Amendment limits the ability of government to punish people for what they say.
We as Americans do not need the First Amendment to protect us from saying politically correct things. It is when we believe and say things that some may find offensive – that the First Amendment applies.
Should a black firefighter such as Faye Davis be punished because she rants about white privilege in a way that offends some whites? I don’t think so.
Where is line line? Is there a line? I think there is – and it is when speech reaches the point of becoming hate speech or harassment. It would be nice if the line between hate speech and protected speech was a bit clearer. Maybe the Beckmann case will be the one that gets us some clarification.
I see what you mean, and I didn’t mean to correlate free speech with “prostitutes or drunk driving” I was just trying to add that here in Chicago public officials private behavior can be used to make judgement about their character. Take in consideration Facebooks new privacy settings where you can choose who views your posts (friends,co-workers,family) and still Captain Beckman didn’t use discernment and deleted his post after the fact as though he is not actually standing behind it. I believe as you do it makes a very good argument thru the court system but years and years and years will give him minor victories only to be appealed and overturned somewhere else. People blame the media for exposing things that may seem racist,unfair,illegal, or interpretative as such with a click a button, so for a Captain to have a backwoods mentality like he’s down south in the 1920′s is beyond many people understanding. I don’t think the demotion will stick, he may lose rank- Yet the city still has the upper hand while the Free Speech issue on private time is murky at best. i don’t think it was worth the legal hassle and trouble but if he can stand the courts and not settle with the city too soon he may just be able to provide some transparency for us all in general in society. this lady on another blog said ” People just don’t understand that Free Speech is Free, but it comes with a HUGE PRICE!” I am from Boston and its been known that for years thru minority neighborhoods EMT operators boasted about not wanting to resuscitate any person of color with their life giving lungs, the EMT waited til they got to the hospital if the person was still alive then that’s where minorities got help “IF” they survived the ride. Captain Beckman woke up America’s violent racist past with his code words grouping his co-workers to his belief system and that has riled that community. I live in Chicago now and we are not allowed to tape any public officials without their approved consent, so imagine how tax payers are paying police and public servants to abuse them without oversight. The police chief Mccarthy has advocated changing that for transparency, but public servants rarely post on Facebook as Beckman did because that would be grounds for discipline if what they wrote could have an adverse effect on them doing their job for all citizens. A case of Power tripping on Beckmans part has him in a quandary and I don’t foresee any justices totally saying his freedom of speech was violated, maybe his due process for the union and his boss Shorty reacting so fast, but to side with him after breaking down each part of his post it shows there is a high likelihood that he would treat any hoodie wearing minority with disdain in his capacity as a Captain and threw his staff under the bus to make his TRUTH a reality by saying he sticks by the context entirely. At this point he has to fight it but why not just open your own business and speak from that viewpoint- don’t take a city job and then spew your rhetoric because in this case it came back to haunt him. He has no protection from being disciplined on some level, its just deciding to what extent. but your blog is excellent and thanks for the arduous task of providing cites with your blogs it allows us to read the otherside of things from the law perspective. Keep up the good work!
One point I forgot to add, when you wrote:
“Should a black firefighter such as Faye Davis be punished because she rants about white privilege in a way that offends some whites? I don’t think so.”
The difference here is, NOT about a hypothetical inference to a rant about “white privilege” from a black female firefighter as an argument for sake of employing the devils advocate to be used;Factually speaking bloggers noted there was no race mentioned or color identified in Beckmans post. Yet, with regards to Trayvon Martin being unarmed and killed by a volunteer night watch person who wore a hoodie when he was killed one can’t help to ascertain why Beckman would be so offended at Angela Corey the Prosecutor trying to find a measure of justice for any child regardless of race. Now to add “thugs, and welfare” (note Trayvons parents were married and his mother held the same job for 23 years, they never been on welfare)it makes it all too Mitt Romney-ish with the 47% statement. Faye Davis just proved that Captain Beckman doesn’t represent all views when he sent that to all his contacts. Is it fair to say that even in jest, Beckman was trying to use his position as Capatain known about his ideals about ALL inner city youth he has to serve and their families known to his colleagues ,friends, and families who may also be a part of the community he serves?
I think so. Faye Davis’s color has been thrown into the fray by racist and antagonist to paint her as the internal snitch of the brotherhood and alliance of the fire department. Its insulting to the community and if I recall correctly ALL classes and colors of children take field trips to the firehouse to meet these brave fireman and women that serve the ENTIRE community regardless of sex,creed,color, or identity and class status. The message that the union and Beckmans lawyer sent to the media with the “Framing of Faye Davis” is typical of the racist south, she is a rat for exposing what she felt was unbecoming and deflects from serving the community in its entirety. How can they publicly try to sully this black woman’s image as a rat for her uncovering a bias that would make Beckman ineffective in his job with the public based on his views he made public using her as one of his co-workers to stamp an approval on his bigotry for ALL people living in poverty, on public aid, with or without a hoodie? We, the American voters just recently left this scenario with Mitt Romney and the 47%…lol, remember it was president Jimmy Carters grandson who submitted the footage to the media via Mothers Jones website…Beckman must of missed this memo, because Mitt Romney never used race or a color or even an article of clothing(hoodie) to lose 300 million or more on a campaign that insulted the public’s intelligence. Mitt Romney freedom of speech worked really well for him because it didn’t affect his money and he is a great business man and has still 3 side jobs. Beckmans judgement,the context, and his ability to serve the entire community is at jeopardy, he put his job in the spotlight which contradicts how he views the community he serves, that makes it relevant- not Faye Davis hypothetical inference of white privilege. Beckman said what he meant, and meant was he said and there is no finer time than now to be his own boss and move to a redneck town where he can post to high heavens what he feels, but don’t moonlight as a public servant…lol. Like i said iy leaves a lot to interpretation because as a public official angel a Corey the Prosecutor has to be neutral to effectively do her job, so it would be fair to say instead of using Captain Faye Davis his peer in a white privilege scenario for Freedom of speech lets apply Prosecutor Angela Corey in that “Framing” and apply that to her as in what is applied to Captain Beckman- would public and city officials question her integrity,ethics, judgement, and ability to lead had she wrote what Beckman posted which could led to public outcry? would her freedom of speech be covered on her personal time outside her job if the public is paying her salary to be neutral to all people she is serving? I am concerned with the subtle racist tactics used against Captain Faye Davis to detract from what Captain Beckmans message was to his followers and contacts and how all these men are shifting blame to her, you even did it in a sly way- even if the point is the same: Do we celebrate and reward bigotry and keep promoting this type of culture and climate that appears to be acceptable? We want to reward people like Faye Davis for bringing this to light, not sully her image, because all color of citizens tax dollars are paying for equal,unbiased,unprejudiced treatment from our fire department chiefs. A suspension,sensitivity training and a slightly higher demotion should be effective and if their were sanctions like making him work with lower income families that would be great also
OK Angelo
So if I understand you correctly, the First Amendment only applies to people who say the politically correct thing.
I respectfully disagree.
It also sounds like you are attributing a lot more to Brian Beckmann than what it in the public record. In fact you seem to cast him as a stereotypical white racist. I am not aware of any factual support for that. Are you extrapolating all that vitriol from what he said on Facebook?
Racism – whether by whites against blacks or blacks against whites – is morally reprehensible. Hopefully we can agree on that.
Good day Mr. Varone,Well just for starters, let me play Devils Advocate here for a moment. I get everything your saying about the First Amendment- however-You are an attorney and certainly you would take Beckmans case(represent him in court) if he solicited you for service right? That’s if you had no others prior engagements, and the conditions were right, right?…lol. I said that to say many attorneys,College Professors and the like are all stating what your presenting as a clear cut case of Freedom of Speech and the apparent violation of it but we also have the Mayor asking the unions and the city to come up with a clear prices definition to prevent another person from losing a 6 figure income. Its truly devastating and we all feel bad for him, but the Mayor said Beckman is a Public servant 24/7.
The great divide in the mayors statement about public servants has a great many people scratching their head concerning their own titles and position off the clock as city workers and they want to have it specified “quote unquote” is considered questionable when they are out of uniform, or off the clock.
I agree racism is morally reprehensible. i am on the same page with you I was just trying to give some semblance to where i believe Beckman, the union and his attorneys went wrong and how he initially responded to media source “Thegrio” claiming they sensationalized what he wrote and he gave no thought to the fact that he added in his “co-workers” to that post and thats where it went from First Amendment freedom of Speech to oops I am still a public official working for the City. He apologized to the fire chief who got chewed out by the Mayor but Beckman didn’t stop there. The blame transferred to Captain Faye Davis and this outraged women in positions of authority (fire,police,etc)It just went from bad to worse for Beckman. In my honest opinion he should have never tried to do his own public relations clean up work. Beckman didn’t think about the Fire chief and what he had done because he was clearly informed that this was a simple 1st amendment Freedom of Speech issue and he didn’t need to present where he copied and pasted it from, or to even show any remorse to the community in the initial stages.
All in all Beckman was failed by the advocates of Free speech in my opinion who led him astray in believing he can from the comforts of his home just take off his uniform and post from his private computer anything he wants then not give accountability. No one advised him that except for the “I and my co-workers” part he would have been covered under Freedom of Speech but he is still a city official. Surely he speaking of an internal fear of youths of any color with hoodies that may be lurking appearing to be a thug ready to jack(rob) him. That internal fear (acronym-False evident appearing real) has many men regardless of their color assuming they will be accosted by some of these “thugs” that come in all colors and that continuity in his post got him in trouble because as a leader and supervisor for the city in his capacity as Captain he made an assumption and tried to classify it as that saying in the old south said to my grandfather from racist redneck ” This is how WE do things around here and if YA’LL dont like it go back to Africa or back where YA’LL came from”- Beckman even said his crew could “re-write a book” concerning whether each single case of racial profiling is legitimate. Now your an attorney and I don’t even think you would agree anyone could profess without the accurate data what constitutes legitimate victims of racial profiling. I believe Beckman, for all purposes became the example for public officials to finally get some comprehensive training for city workers regarding what off the clock speech and behavior can be used in discipline against them. He paid a huge cost for city workers so that others dont have to follow suit. Unfortunately, like I said before the union and his attorneys bringing Faye Davis into it further just handed the city Beckmans head on a platter
Angelo
You seem to be attributing a sinister status to Brian Beckmann that is akin to Lex Luther or Adolf Hitler… complete with so called “followers” and teams of attorneys and PR men.
Most firefighters I know are living paycheck to pay check. They don’t have “followers” and don’t have attorneys and PR men on retainer. Some may be able to go a few more weeks without a pay check than others – but we all are part of the world of working people who cannot afford teams of attorneys to help them figure out what they can and cannot say on Facebook, or how to skillfully craft a public message.
As I said in the last post – we disagree on our interpretations of the First Amendment. That’s cool. We can agree to disagree. You believe in an America where government can tell its employees what they can and cannot say, what they can and cannot think – under penalty of termination or discipline.
I disagree and think the First Amendment stands for tolerance of views different from our own. The protections I see are not without limits – but should protect people’s free speech rights up to the point that the speech become hate speech, or causes actual harm. That should be the question, not whether Brian Beckmann is himself evil, has followers, is a white supremacist, or is a Black Panther.
If Brian Beckmann’s comments constitute hate speech, or caused actual harm to his employer then his employer has a right to take reasonable disciplinary action against him. Whether he is evil, not evil, has followers or is a lone wolf howling in the wilderness, is irrelevant. Actual harm/hate speech should be the focus. There is no need to vilify him. He could be a nice guy who said something stupid and if it causes actual harm – he should be disciplined. He could be evil incarnate – but if what he said did not cause actual harm, he should not be disciplined.
As for me representing Brian Beckmann or Faye Davis, I am not licensed to practice in Florida – but where I can practice it is first come first served. I will do my level best to help anyone in need. Race, religion, national origin, gender, sexual orientation, disability, and age are as irrelevant to me as what color house someone lives in. We are all the same… we have the same needs, wants, hopes and fears. It’s people’s social and political agendas that divide us.
Many probing thoughts, and rational in the previous posts, however lets talk real world. Anyone who has livid and worked in South Florida knows that racism still exists in all facets of our lives. People like Mr. Beckman permeate through our community and sometimes we learn who they are. Many times we dont. I have sat in corporate meetings and the same tripe gets into the conversations. If you take the time to spew such hurtful posts, you really believe your thoughts. And that is the issue.I have no confidence in such a person as Mr. Beckman as one of our firemen.
Tony
I think I am talking real world. Racism exists in many forms – and whites do not have the exclusive monopoly on it!
If you know Mr. Beckmann personally and know him to be a racist – then your comments have credibility and are totally appropriate. If he is a racist – I hope he get’s what he deserves.
If you only know him through the media – then it sounds to me like you are being a bit hypocritical by stereotyping him as a typical white racist from south Florida.