A City of Charlotte fire investigator is out of a job because of a Facebook post in the aftermath of the Ferguson, Missouri riots. It’s the first time a Charlotte city employee has been fired over a posting on social media. An attorney for the investigator says the city overreached.
So what are the First Amendment rights of public employees?
City Manager Ron Carlee says it’s essential the public is confident that city employees will treat all people with dignity and respect.
He believes Crystal Eschert violated that confidence shortly after police officer Darren Wilson shot and killed Michael Brown in Ferguson, Missouri.
Eschert is white. She referenced reports of another police shooting near Ferguson that said a white person was the victim. She wrote on her personal Facebook page:
Where is Obama? Where is Holder? Where is Al Sharpton? Where are Trayvon Martin's parents? Where are all the white guy supporters? So WHY is everyone MAKING it a racial issue?!? So tired of hearing it’s a racial thing. If you are a thug and worthless to society, it’s not race – You’re just a waste no matter what religion, race or sex you are!
Eschert did not identify herself as a Charlotte Fire Department employee, but she was fired in September after someone emailed the post to city officials. Carlee says it was discriminatory and inflammatory.
Guy Charles has a different phrase for it. He co-directs Duke University’s Center on Law, Race and Politics.
“She said something that at best was racially insensitive, but on a public issue on a private page,” says Charles. “Between the hand that she’s holding and the hand that the city’s holding, I think I’d prefer to have her hand.”
If Eschert worked for a private employer, she wouldn’t have a free speech case here since the First Amendment only applies to the government. But even though she has that protection, it’s not absolute.
“I’m inclined to say the employee has a pretty strong case here, but when it comes to the government acting as an employer the legal rules are quite vague,” says UCLA Law Professor Eugene Volokh.
“The Supreme Court has agreed that, on the one hand, the government doesn’t have a free hand in restricting speech by its employees. That any such restrictions would unduly interfere with public debate and democratic self-government and the marketplace of ideas,” says Volokh. “On the other hand, the court has said but, of course, the government may in some measure restrict speech in order to protect its efficiency.”
In other words, it’s a balancing act, between the employee’s free speech and how disruptive that speech is to the city’s operations. Volokh points out courts have ruled in favor of government agencies firing police officers for outright racist statements. But he says Eschert’s case isn’t as clean cut.
“It’s not clear how far it extends to statements that might be seen as racially insensitive or even racially offensive, but are an important part of the debate about what the president is or is not doing and how we should deal with racial questions,” says Volokh.
Also, she’s a fire investigator, not a police officer with powers to arrest.
If this case goes to court, UNC Chapel Hill Law Professor William Marshall says the city would have to prove the statement affected her ability to do her job. He has his doubts the city would succeed.
“I don’t think that it could easily be shown that she thinks that there are certain elements of society that might be thuggish is an indication that she’s not qualified to be able to engage in arson investigations,” says Marshall.
The Charlotte Fire Department doesn’t give much guidance to employees about what’s considered unacceptable speech. Its social media policy says not to use “unprofessional communication” that could negatively impact the department’s reputation, interfere with its mission, or negatively affect its employees.
“That would be a concern about a member of our department talking, communicating, posting something that could be perceived as offensive, or of difficult or harassing…that type of nature,” says the fire department’s spokesman Rob Brisley.
Duke University Law Professor Guy Charles says courts have long had to balance First Amendment rights with maintaining a workplace free from racial discrimination. He expects they’ll deal with more of these situations as recent events like Trayvon Martin and Ferguson have put race front and center in the national debate and social media has made private speech very public. But clearly that burden won’t just be on the courts.
“Employees have to decide how much risk they want to take for expressing views that are either politically incorrect or racist,” says Charles. “And employers also have to decide how much can they monitor and how much can they control the private postings and messages of their employees on their private accounts.”
Eschert believes the city is making a big deal out of the Facebook post in retaliation for expressing concerns to a city council member about the conditions of a city building. She wouldn’t talk to WFAE. But her attorney says the city couldn’t fire her for whistleblowing because that’s protected by the First Amendment too.