Employment Law Daily Free speech rights didn’t save firefighter from misuse of employer’s internal email system
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Tuesday, September 27, 2016

Free speech rights didn’t save firefighter from misuse of employer’s internal email system

First Amendment free speech rights, including freedom of expression and religion, are among the hallowed traditions of our republic. Those rights notwithstanding, a Washington fire captain’s persistent use of the fire department’s internal email system to disseminate Christian messages to coworkers were not enough to save him from discharge for engaging in such conduct, ruled a Washington Court of Appeal in Sprague v. Spokane Valley Fire Department. Concluding that the email system was a nonpublic forum, and that limiting its usage to fire department business was reasonable and viewpoint neutral, the court determined that the employee was unable to prove that his First Amendment free speech rights were violated. Christian firefighters fellowship. The captain formed a Christian fire fighters 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. Nevertheless, the captain refused to follow the written policy and continued to use the email system in much the same way as he had before. After a series of progressive disciplinary actions culminated in his termination; and the civil service commission upheld his termination on grounds of insubordination, he brought suit in state court asserting that his First Amendment rights had been violated. Judicial scrutiny. As an initial matter, the appeals court observed that when it is alleged that the government is improperly infringing on free speech rights, the first question is to identify the nature of the forum that is being regulated in order to determine what level of judicial scrutiny applies. In a traditional public forum, the government generally can only impose content neutral restrictions on the time, place, and manner of expression, if those restrictions are narrowly tailored to serve a significant government interest and leave open adequate alternative fora. Nonpublic forum. However, 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.” Here, the appeals court found that the fire department’s internal email system was a nonpublic forum. While there was evidence that 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.” Thus, the department’s email policy met the requirements for a nonpublic forum. 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. Further, there was no evidence the department had ever opened its email system to permit “expressive activity.” Therefore, the email system must be considered nonpublic, and the employer’s policy was constitutional, the appeals court concluded. “As applied” challenge. Moreover, 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. However, the appeals court found no need to reach his “as applied” challenge due to collateral estoppel. The court noted that 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. Finding that 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.

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