Ind. firefighter had right to send e-mail criticizing department

Wednesday, April 27, 2011

A volunteer firefighter had a First Amendment right to send a private e-mail about a contentious political campaign that referenced his department, the Indiana Supreme Court has ruled.

Brad Love worked as a part-time firefighter for the Sugar Creek Township Fire Department in the spring of 2006. During that time Bob Boyer, a retired volunteer firefighter, ran for the office of Sugar Creek Township Trustee — a position that would determine who was fire chief. Boyer’s campaign focused on unnecessary and excessive spending by the township. Love supported Boyer’s candidacy.

Love received an e-mail in April 2006 that was highly critical of Boyer and his campaign. Love responded by sending a message to a small group of residents associated with a local children’s athletic league.

In his e-mail, Love defended Boyer and talked about excessive spending by the fire department. He noted that the town had paid for five new vehicles for some full-time firefighters. He also stated: “This is the worst managed spending I have ever seen in my 9 years of working with 100’s of fire depts.”

Less than one month after Love sent the e-mail, Fire Chief Robert Rehfus — who opposed Boyer and supported the other candidate — fired Love for conduct unbecoming a firefighter and for making false statements. A termination letter to Love read at the end: “Lying about the Chief of the Department is an inexcusable offense.”

Love responded by filing a civil rights lawsuit in state court, contending that Rehfus and the township had retaliated against him because of his critical political speech.

A state trial court granted summary judgment to the defendants, but the Indiana Court of Appeals reversed in 2009 and reinstated the lawsuit. Rehfus and the town then appealed to the Indiana Supreme Court.

In its April 21 opinion in Love v. Rehfus, the Indiana high court reasoned that Love did not forfeit his First Amendment rights as a citizen to speak about a political campaign and allocation of funds by a government agency.

Love’s case is quite similar to the U.S. Supreme Court’s seminal case on public-employee speech, Pickering v. Board of Education (1968). In Pickering, the Court ruled that public school teacher Marvin Pickering had a First Amendment right to write a letter to the editor that claimed his school board allocated too much money to athletics and not enough money to academics. The school board contended that Pickering was not protected by free speech because his letter contained false statements.

Similarly, the fire department and township contended that Love had no free-speech rights because his e-mail contained inaccurate statements about the fire department and the fire chief.

The Indiana Supreme Court evaluated the case under the standards laid out by the U.S. Supreme Court in Pickering and subsequent decisions in Connick v. Myers (1983) and Garcetti v. Ceballos (2006). Under this body of law, a public employee must first show that he or she spoke as a citizen on a matter of public concern or importance.

In Garcetti, the Court ruled that public employees have no free-speech rights when they speak pursuant to their official job duties, but do retain some measure of free-speech rights when they speak as citizens. Love spoke as a citizen, not as an employee, when he sent his e-mail, the state high court said, because he “wrote the e-mail from his home computer while he was off-duty” and “he was not fulfilling any of his duties as a firefighter.”

Next, the Indiana high court noted that Love’s message definitely addressed a matter of public concern because it talked about government allocation of funds — a matter that the U.S. Supreme Court identified as important in Pickering.

Because Love’s e-mail was citizen speech on a matter of public concern, the Indiana Supreme Court had to balance his right to free-speech against the defendants’ interest in an efficient, disruptive-free workplace. The defendants contended that Love’s message was disruptive because it forced Rehfus to respond to its allegations and it became the subject of discussion among many firefighters.

However, the state high court rejected the arguments of disruption, noting that the chief punished Love because he personally disliked the contents of the e-mail rather than because the message could have a disruptive effect. Further, the justices found that “the fact that Love’s e-mail provoked debate and discussion supports and possibly bolsters its important First Amendment value.” The court also noted that Love did not make any personal attacks on the chief in his e-mail.

The defendants also argued that Love’s letter should receive no First Amendment protection because it contained some false statements. However, the Indiana high court noted that “the First Amendment protects at least some false statements of fact.”

The Indiana justices said the e-mail constituted political speech during a campaign — speech that should enjoy a healthy degree of protection. The high court concluded that much of the e-mail was substantially true and that any parts that were not true were made with “good-faith error.”

The court added that the “proper response to these allegations was more speech, not employment retaliation.”

“Although the history and jurisprudence of the First Amendment are anything but simple,” the court concluded, “it is clear that Love’s activities in this case were protected by the Free Speech Clause.”

The case now returns to a lower court for further proceedings.

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