The Courts have made it clear that public employees do not give up all their First Amendment rights to freedom of speech when they make statements on matters in the public interest. However, those rights are balanced against the government’s interest in controlling the operation of its workforce. How these principles fit into today’s social media world was explored in an opinion last week from the federal 4th Circuit Court of Appeals in a case called Kevin Patrick Buker v. Howard County.
The opinion indicates that Buker was battalion chief with the Howard County Fire Department, which in their chain of command placed him below the fire chief and his assistants and deputies. The Department in 2012 published social media guidelines, which prohibited personnel “from posting or publishing any statements, endorsements, or other speech…which could reasonably be interpreted to represent or undermine the views or positions of the Department…or interpreted as discriminatory, harassing, defamatory, racially or ethnically derogatory, or sexually violent” which may put the Department in disrepute of negatively impact its mission. The Department also adopted a Code of Conduct barring conduct through actions or words disrespectful to or undermining the Chain of Command.
The First Amendment to the Constitution covers a great deal in very few words. Specifically it states: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."
If there is one word that is the most significant among the 44 words that comprise the amendment it is the word "Congress". The amendment is intended to prevent "Congress", and by Congress, the government, from enacting laws that would violate an individual's right to practicing his or her religion or exercising his or her right to free speech, a free press, assembling peaceably, or petitioning the government.
The recent controversy regarding the displaying of the Confederate battle flag gave me cause to consider the difference between actions and mere symbols. The argument most given against removal of the battle flag is that it expresses pride in one's heritage and one's strong belief in state's rights and, further, is covered by the first amendment to the Constitution under freedom of speech. Displaying a flag would be considered by the Supreme Court as an expression of speech based on court precedent. However, the court has also used the now famous example of "yelling fire in a crowded movie theater" where there is no fire to indicate that there are exceptions even to the first amendment and freedom of speech. In the case of the displaying of the Confederate battle flag, although it may, indeed, represent one's heritage and a strong belief in state's rights, the state's right that it represents is the right to own another human being and the right to secede from the union if that right is to be taken away. As such, it serves all too often to represent hatred and the associated violence, as in the case of the Charleston shooting, and should be no more protected under the first amendment than the right to yell fire in that crowded movie theater when there is no fire.