When Your Speech Is So Off the Rails It Ain’t Free No More

This firefighter should be terminated from his position in my humble opinion.  As a public servant, a display of this kind of hatred and lack of impulse control (the inability to keep one’s bigotry to oneself, and the desire to deliberately try and push other people’s buttons, which he actually admits to proudly) disqualifies him from being able to truly serve the public equitably.  Teachers, cops, firefighters, and all other public servants (including county clerks who issue marriage licenses) have a right to their beliefs.  They do not have a right to their taxpayer supported employment.  If they display biases like this, or refuse to do their jobs equitably (as in the case of county clerks) they deserve to have their careers ended immediately.

OH BOY… You all ready I am going in point… who’s got my back… This is gonna be fun!!!

1. You might note that the broadcast said the Cleveland Fire Department has a social media police. We don’t know what that social media policy is exactly.  I did an initial search to see if I could find a copy, but could not. I will be putting a in a FOIA.  So we will just leave it at this, though they sure did intimate that there may have been a violation. We will see.

2. Let’s talk about that fine old first amendment. I see a lot of drive by comments on Facebook in support of it, but very little understanding of how it really applies. I love the first amendment it is my pet amendment. I am putting myself up to be the the president of the first amendment committee on this page (can I get some votes) because boy do a lot of people get it confused.

FIRE FIRE FIRE

You may have heard the first amendment does not protect you if you falsely yell fire in a crowded theater. That holding is a outdated and overturned, because of that it is more complicated and muddled by subsequent holdings. Currently you might be able to falsely yell fire if it doesn’t incite “imminent lawless action” even if it risks others safety.

More Specifically In 1969, the Supreme Court’s decision in Brandenburg v. Ohio, 395 U.S. 444 (1969) effectively overturned Schenck v. United States, 249 U.S. 47 (1919) and any authority the case still carried. There, the Court held that inflammatory speech–and even speech advocating violence by members of the Ku Klux Klan–is protected under the First Amendment, unless the speech “is directed to inciting or producing imminent lawless action and is likely to incite or produce such action

FIGHTING WORDS

It does not protect you if you utter “fighting words” kinda… (I personally am a bit distressed by this but it is the somewhat the case now…) It is also so differently and disparagingly applied (kinda like drug laws are harder on people of color than on whites, believe me if you are do it to a police officer though you will be prosecuted if they remember they can).  Yet in many ways we do it all day on Facebook.  I guess the cool thing about social media is we can’t actually come to blows in the heat of the moment.

What are fighting words… In 1942, the U.S. Supreme Court established the doctrine by a 9–0 decision in Chaplinsky v New Hampshire, 315 U.S. 568 (1942) . It held that “insulting or ‘fighting words,’ those that by their very utterance inflict injury or tend to incite an immediate breach of the peace” are among the “well-defined and narrowly limited classes of speech the prevention and punishment of [which] … have never been thought to raise any constitutional problem.”

The Courts in disarray over fighting words:

The lower courts have had a difficult time determining whether certain epithets constitute “fighting words.” At the very least, they have reached maddeningly inconsistent results. Consider the following situations in which offensive statements were found not to constitute fighting words:

  • Calling a police officer a “son of a bitch” (Johnson v. Campbell, 3rd Circuit, 2003).
  • Yelling “fuck you all” to a police officer and security personnel at a nightclub (Cornelius v. Brubaker, Minnesota District Court, 2003).
  • Telling a police officer: “I’m tired of this God damned police sticking their nose in shit that doesn’t even involve them” (Brendle v. City of Houston,Court of Appeals of the State of Mississippi, 2000).
  • Telling a security officer “This is bullshit” when rousted from a parking lot (U.S. v. McDermott, Eastern District of Pennsylvania, 1997).

However, other courts have determined that the expressions in the following situations were fighting words:

  • Flashing a sexually suggestive sign repeatedly to a young woman driving a car (State v. Hubbard, Minnesota Court of Appeals, 2001).
  • Yelling racial slurs at two African-American woman (In re John M.,Arizona Court of Appeals, 2001).
  • Repeatedly yelling the words “whore,” “harlot” and “Jezebel” at a nude woman on the beach (Wisconsin v. Ovadal, Wisconsin Court of Appeals, 2003).
  • Calling a police officer a “white, racist motherfucker” and wishing his mother would die (State v. Clay, Minnesota Court of Appeals, 1999).
  • Calling a police officer a “fucking asshole” in a loud voice and attempting to spit on the officer (State v. York, Maine Supreme Judicial Court, 1999).

I do love this quote though by Justice Douglas in his opinion in Terminiello V. ChicagoAccordingly a function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech, though not absolute, Chaplinsky v. New Hampshire, supra, pp. 571-572, is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest. See Bridges v. California, 314 U.S. 252, 262; Craig v. Harney, 331 U.S. 367, 373. There is no room under our Constitution for a more restrictive view. For the alternative would lead to standardization of ideas [5] either by legislatures, courts, or dominant political or community groups.

GARCETTI-PICKERING BALANCING TEST

Since our esteemed (sarcastically) free speech firefighter Mr Guy Estergall is a public employee. His speech falls into a different kind of category. Lets say Mr. Estergall gets fired or disciplined and goes to the court to adjudicate the negative result of his speech, the court will apply the Garcetti-Pickering Balancing Test to determine if it is protected speech.

Take note, in the interview he was very sure to say those were his personal words and did not represent the department. That was an outright cya moment.  I bet $10 he had some legal advice before the interview. He did sprew some pretty filthy stuff,  I can’t imagine that it is falls within the Cleveland Fire Departments Official stance.

The Garcetti-Pickering Balancing Test the court will use to evaluate his speech will ask questions like

  1. whether the speech was made pursuant to an employee’s official duties
  2. whether the speech was on a matter of public concern; (3) whether the government’s interests, as employer, in promoting the efficiency of the public service are sufficient to outweigh the plaintiff’s free speech interests;
  3. whether the protected speech was a motivating factor in the adverse employment action; and
  4. whether the defendant would have reached the same employment decision in the absence of the protected conduct.

The first three elements are issues of law for the court to decide (that means a judge can decide and now jury is necessary), while the last two are factual issues typically decided by the jury

I suspect he would lose what say you councelor?

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