Another Facebook Question in Florida

Just a month after a Miami-Dade firefighter created a racially charged controversy with statements posted to his personal Facebook page, a second Florida firefighter finds himself under the microscope for comments he made about the citizens he serves.

Eric Johnson is a firefighter with the Hialeah Fire Department, and vice-president of the Hialeah Association of Firefighters, IAFF Local 1102. He is under investigation by the department for having posted a number of comments on his personal Facebook page that Mayor Carlos Hernández believes suggest a lack of sensitivity toward the people of Hialeah. Among the comments of concern:

• A photo of a man riding a motor bike with a goat on his back, to which Johnson commented “only in Hialeah, LOL”.
• “I have a system. Just add an ‘o’ to any English word and bam! It works. For example, how ya doin ‘o’ You wanna go to the hospital ‘o’ I just learned that you can’t do that when you say is this your home though. Ha Ha.”
• “Ha Ha Ha… Jew forgot dat I hab da Medicare… Jew must talk me.”

Johnson claims the investigation is actually political retaliation for his criticism of the administration. He also defended his comments: “These aren’t stereotypes, this is reality. If anyone is stereotyped, it’s me in Hialeah… I’m married to a Cuban. My best friend is an African-American. Anything else?”

The investigation took an unexpected turn last week when someone viewing his Facebook page, observed photos of Johnson’s under-aged sons with alcohol, and forwarded them on to Hialeah police who have launched a separate investigation.

Part of my concern with this case, and with the case of Miami-Dade firefighter Brian Beckmann, is that the scope of First Amendment protection that public employees enjoy when making a social commentary on Facebook and other social media web sites, is actually quite a bit narrower than many people realize. It creates a challenging area for both firefighters and fire chiefs alike.

There is a saying that the First Amendment is intended to protect unpopular comments, because no one needs protection when they say something that everyone agrees with. However, when comments go beyond simply being unpopular and cross over into causing actual harm, there is no protection. In the middle is a vast grey area… a First Amendment “No-Mans Land”.

The challenge is – how are public employees supposed to manage that distinction BEFORE HAND… before they post? Courts are comfortable wrestling with these distinctions AFTER THE FACT, and judges often disagree where a particular case should come out. Given that reality, how are non-judges… non-lawyers… average folks including firefighters and fire chiefs supposed to navigate this thorny area BEFORE HAND?

We will be discussing these issues and more in the Strategies for Managing Fire Departments in The Digital Age class.