Free Speech?

A man attended protests around the Tampa area. He is alleged to have been using racial and anti-gay language at these protests. The leftists do what they always do- they post pictures of people on the opposing side in the hopes that someone will identify them. That’s what happened here: someone recognized and identified him. At no time is he alleged to have identified his employer during the protests, nor is he alleged to have ever worn uniform items while protesting. Still, he was fired from his job at the Largo Fire Department as a result of his behavior at the protests.

Stoffel’s actions were not consistent with the standards and trust the community expects and deserves. ~Largo Fire Department officials in a statement to the press

A private employer would be in a good position to fire Mr. Stoffel. However, his employer is the government.

The government cannot prohibit the free exercise of speech. Government employees who are not at work do not lose their Constitutional rights simply because the government signs their paychecks. Government employees can speak as private citizens on matters of public concern without fear of retaliation, but their speech can be restricted if it disrupts government operations or is part of their official job duties. Since Mr. Stoffel was protesting on his own time and did not at any time indicate that he was a government employee, he is free to speak his mind. This is a well established legal principle.

The governing constitutional standard, known as the Pickering test, is a flexible balancing inquiry pitting the interests of the government as an employer against the free speech interests of their employees.

• speech spoken as an employee gets no constitutional protections. So the speech cannot be made as a part of an employee’s duties. Garcetti v. Ceballos (2006)
• The speech must be one of concern to the general public. For example, speech complaining about your boss’ management style is not protected. Connick v. Myers (1983)
• In Pickering v. Board of Education, a public school teacher was fired for publishing a “Letter to the Editor” that criticized the local school board’s allocation of school funds. The Court noted that teachers were “the members of a community most likely to have informed and definite opinions” about public school expenditures. This establishes that sometimes citizens who happen to be government employees can have an educated opinion.

Speaking as a citizen and speaking as an employee appear to be mutually exclusive: a speaker can speak either as one or the other. An employee speaks as a citizen whenever the speech is neither an employment grievance nor speech that a part of their professional duties. And while speech spoken as an employee is unprotected, when an employee speaks as a citizen, any reactive adverse employment action would be subjected to a constitutional scrutiny whenever that speech is about matters of public concern. Simple, right?

One other caveat: The speech can’t be detrimental to the mission of the employer. In City of San Diego v. Roe (2004), a police officer was fired for selling sexually explicit videos of himself stripping off a police uniform and masturbating. When the case eventually made it to SCOTUS, the court ruled that the officer had damaged the mission of his employer because he appeared in uniform in the video.

So let’s now take a look at Stoffel’s actions- he was engaged in various protests in the Tampa area. At no time did he announce that he was a firefighter, never appeared in any sort of clothing that identified that he was part of that fraternity, and the speech was not a part of his duties. Some speech, like a public employee’s social media posts considered racist, sexist, or homophobic, could be seen as matters of public concern.

In deciding if the speech is disruptive to the workplace, the court will consider the content of the speech, as well as its manner, time, and place. In this case, it was at a protest where people of both sides of the argument were present.

There was a similar case a few years ago in Lake county, where a teacher that had expressed his disagreement with the concept of gay marriage was terminated after a parent recognized him and started a public cancelling campaign. He sued, and they settled out of court, paying him an undisclosed sum. I posted about it here.

In my opinion, Mr. Stoffel has a good case. He should retain a lawyer and file a lawsuit.