Fire Chief’s Words Not Protected, Circuit Says

     (CN) – A Massachusetts fire chief’s comments about staffing and budget issues during a press conference in the wake of a deadly house fire are not protected by the First Amendment, the 1st Circuit ruled.



     The Town of Randolph, Mass., suspended Chief Charles Foley, Jr., for 15 days without pay for speaking out on what he considered to be “inadequate funding and a related lack of staffing at the Randolph Fire Department.”
     Foley made the comments immediately after a tragic fire in which two children, ages 10 and 17, died.
     Foley told reporters that “while [he]could not definitively state that the outcome in this particular fire would have been different if the department had been better staffed, he indicated that the operation would have gone more professionally and more according to standard if the department had more manpower,” the ruling says.
     In suspending the chief, the town said Foley’s comments “demonstrated a lack of sound judgment and of accuracy” and “were not conducive to the town’s mission of providing effective fire protection services.”
     Foley sued the town in federal court alleging violation of his First Amendment rights. The court ruled for the town and Foley appealed.
     The Boston-based, three-judge appellate panel agreed with the lower court.
     For Foley’s comments to be protected speech, he would have had to voice them as a private citizen, wrote Judge Norman Stahl.
     “Speaking to the media under the circumstances discussed above, Foley could have hoped and anticipated that his frustration with the budgetary and staffing shortfalls of the department might have reached a greater audience and had a greater impact than if he voiced his views in another forum,” Stahl wrote. “However, those same circumstances imbued his speech with the official significance that removed it from the protection of the First Amendment.”
     In this case, Stahl added, context is everything. Not all speech by a public employee is unprotected. If a speech has a “relevant analogue to speech by citizens” – such as letter to the editor – the employee is protected. However, in Foley’s case, there is no question that he was acting as an employee, not as a citizen.
     “As chief, he had been in command of the scene, and when choosing to speak to the press, he would naturally be regarded as the public face of the department when speaking about matters involving the Department,” Stahl wrote.
     “Under these circumstances, Foley addressed the media in his official capacity, as Chief of the Fire Department, at a forum to which he had access because of his position. Thus, ‘there is no relevant analogue to speech by citizens.'”

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