Union Election Speech Protected By First Amendment

Written on 08/06/2022
Will Aitchison

Al O’Laughlin and Crystal Little are captains in the Palm Beach County Fire Rescue Department. Both are mem­bers of the International Association of Firefighters Local 2928.

O’Laughlin was running for Local 2928 presidency. As part of his cam­paign, he created an invitation-only Facebook page, on which he posted a comment accusing Local 2928’s First Executive Vice President, Captain Jef­frey Newsome, of attempting to misuse time that union members had donated to the Union Time Pool. O’Laugh­lin’s Facebook post accused Newsome of conspiring with Fire Department management to use donated time on Thanksgiving and Christmas – days he wouldn’t have been transacting any union business.

O’Laughlin posted a screenshot of the Union Time Pool calendar and stated: “This is your Union leadership. Wtf. When elected this will stop.” For her part, Little responded: “Thanks AJ for keeping them accountable. And on that note our fucking stellar staffing officer just blindly approves it? Wtf!”

The County issued written warnings to O’Laughlin and Little for violation of the Fire Department’s Social Media Policy. O’Laughlin and Little sued the County, alleging that, in part, the Social Media Policy violated their free speech rights under the First Amendment.

A federal appeals court allowed the lawsuit to proceed. The Court noted that to bring a free speech claim, “An employee must show that: (1) the speech involved a matter of public concern; (2) the em­ployee’s free speech interests outweighed the employer’s interest in effective and efficient fulfillment of its responsibilities; (3) the speech played a substantial part in the adverse employment action. If an employee satisfies her burden on the first three steps, the burden then shifts to the employer; and (4) to show by a preponderance of the evidence that it would have made the same decision even in the absence of the protected speech.

“In assessing the content of a public employee’s speech, we look to whether the speech communicates a subject of legitimate news interest, a subject of gen­eral interest and of value and concern to the public at the time. Here, O’Laughlin alleged, and Little seemed to second: (1) that Newsome had attempted to misuse member-donated paid-time-off for his own personal benefit; and (2) that Fire Department management was complicit in Newsome’s wrongdoing. Put simply, plaintiffs’ speech was intended to expose what they perceived to be corruption within Local 2928 and the Department. That strikes us as sufficiently a subject of legitimate news interest to satisfy the public-concern requirement for content.

“No decision supports the con­clusion that a public employee forfeits his protection against governmental abridgment of freedom of speech if he decides to express his views privately rather than publicly. Plaintiffs here aired their grievances in the run-up to a union election, and they used an online platform to pointedly criticize union leadership. Issues regarding the operation of government, including issues of union organization, are often considered matters of public concern. The fact that plaintiffs’ speech here oc­curred in the context of a union election hardly changes matters.

“While we don’t doubt the premise that plaintiffs’ speech was at least to some degree motivated by their personal interest in the outcome of the Local 2928 election, we reject its conclusion that their election-related motivation deprives their speech of its publicness. Presumably, in any campaign setting, a candidate and his supporters will have a selfish purpose for speaking, including about rival candidates – namely, winning the election. But far from undermining their speech’s claim to First Amendment protection, that purpose at least arguably strengthens it.”

O’Laughlin v. Palm Beach County, 2022 WL 982870 (11th Cir. 2022).

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