By Dave Strausfeld, J.D. A fire department captain who was discharged for sending Christian messages to coworkers via the department’s internal email system was unable to prove that his First Amendment free speech rights were violated, held a Washington Court of Appeals, affirming a lower court’s grant of summary judgment. The email system was a nonpublic forum, and limiting its usage to fire department business was reasonable and viewpoint neutral. Judge Lawrence-Berrey filed a separate concurring opinion. In dissent, Chief Judge Fearing argued the department had opened the email system to religious messages by forwarding newsletters from its health insurer about solving personal problems and living a healthy lifestyle, because the government may not "prefer secular chatter over religious oration" (Sprague v. Spokane Valley Fire Department, September 21, 2016, Korsmo, K.). Argued he had First Amendment right. The captain formed a Christian firefighters fellowship and began distributing newsletters and meeting notices for that group via the fire department’s internal email system, often including scriptural passages in his messages and mentioning the topics being discussed at upcoming meetings. The fire chief reminded him the email system was to be used for fire department business only and that emails announcing meetings should not include religious references. However, the captain refused to follow the written policy and continued to use the email system in much the same way as he had before. A series of progressive disciplinary actions ensued culminating in his termination. When the civil service commission upheld his termination on grounds of insubordination, the captain did not appeal its ruling, and instead brought suit in state court asserting that his First Amendment rights had been violated. Email policy constitutional. As an initial matter, the Washington appeals court found that the fire department’s internal email system was a nonpublic forum. There was no evidence the department had ever opened it to permit "expressive activity." While employees were permitted to use the system when it was incidental to work, such as arranging for a babysitter because of the necessity of working late or posting flyers about events or occasions, these exceptions were "narrowly drawn." Therefore, the email system must be considered nonpublic, the appeals court concluded. In a nonpublic forum, the government may impose restrictions on speech so long as they are "reasonable in light of the purpose served by the forum and are viewpoint neutral," in the Supreme Court’s words. Here, the department’s email policy met these requirements. The policy was viewpoint neutral in that it completely banned private usage (absent work-related necessity) without regard to content. And it was reasonable to limit the use of a government computer system to government business. Thus the policy was constitutional. "As applied" challenge barred for procedural reasons. The captain did not truly contest the validity of the written policy on its face. Rather, his argument challenged the policy as it was allegedly practiced rather than as it was written. But the appeals court found no need to reach his "as applied" challenge due to collateral estoppel. At the civil service commission proceeding on his termination, the commission specifically found no evidence of any alternative "as applied" policy or any uneven application of the email rules. Because all of the elements for collateral estoppel were satisfied—identity of issues, identity of parties, and so forth—the captain could not collaterally attack the administrative factual findings. In short, he "lost his ability to claim that there was an alternative policy when he failed to appeal the civil service commission determination." Concurrence. Judge Lawrence-Berrey joined the majority opinion but wrote separately to emphasize that a failure to restrain the captain’s religious postings could have exposed the fire department to Establishment Clause liability. Dissent. In a lengthy dissent that began with a quotation from the Book of Matthew, Chief Judge Fearing contended that the department opened its email system to employee messages "of solving personal problems and societal ills through the grace of God" when it distributed health newsletters "addressing those same problems and ills." The newsletters were from the health insurer that administered its employee assistance program, and addressed topics such as communicating with a teenage child, avoiding problem gambling and drinking, preventing depression, and so forth. Because the government may not "prefer secular chatter over religious oration," disciplining the captain for addressing the same topics from his religious perspective constituted viewpoint discrimination, the judge argued, urging the case be remanded for further factfinding.
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