Employer Can Require Notice, But Not Permission, Before Employee Speaks To Press Or City Council

David Davis was hired by the Fire Department of Phenix City, Alabama in April 1998. Davis became the president of a local association of fire and rescue employees in 2005. In September 2005, a meeting was held to discuss issues of interest to the Association members. A journalist employed by a local newspaper attended the meeting. An article about the meeting which appeared in the local newspaper in mid-September 2005 quoted Davis.

In April 2006, Davis became aware of a proposal before the City Council to extend the probationary period of new firefighters from one year to 18 months. While off duty, Davis called the Mayor to discuss the proposal. The next day, Davis was told by the City he was being fired for contacting the Mayor to discuss the probation proposal. When internal appeals did not change the City’s decision, Davis brought a free speech lawsuit against the City.

Davis contended that the City’s rules constituted an illegal “prior restraint of speech.” A Fire Department procedure provides that “if a member of the Department has a problem with the Department and with the Department operations and procedures which are work related and finds it necessary to go above his/her immediate supervisor, he must notify the supervisor of the intent to do so. If any Fire Department member appears before the City Council or directly contacts City Council members about work-related problems without following these procedures, they will be subject to disciplinary action.”

A federal court found that the City gave conflicting evidence as to what these policies meant. One witness testified that a firefighter who spoke to the media without gaining Department approval would violate the rules. Another witness for the City testified that the City’s rules merely required a firefighter to provide notice to the City of his or her intent to speak to the media or City Council members, and that the rules did not require the firefighter to obtain permission to engage in the speech.

In the Court’s judgment, whether the rule was permissible under the First Amendment to the United States Constitution depended upon what the rule really meant. If the rule actually only required notice of the intent to engage in speech, the Court observed that “the City has pointed to the effects of speaking outside the chain of command as being deleterious on morale and the ability of the Fire Department to properly function as its interests in its policies. As stated above, policies which merely require employees to provide notice of intent to speak to the media have been found to be constitutional, when weighed against the strong interest of the government as employer. In this case, if the policies only require that certain procedures be followed, and ultimately allowed speech, the indirect burden on speech posed by the policies is outweighed by the concerns of the employer as a paramilitary organization.”

On the other hand, if the City’s rule actually requires permission before a firefighter could speak to the media or the City Council, the Court had little doubt that the rule would be unconstitutional. As the Court noted, “a policy which requires prior approval by a government employer has been held to be an unconstitutional restraint to the speech.”

The Court sent the case back to the trial court to determine the meaning and intent of the Department’s rules.

Davis v. Phenix City, Alabama, 2008 WL 401349 (M.D.Ala. 2008).

This article appears in the April 2008 issue