Union’s Contract With Telemarketer Not Protected By The First Amendment

Local 4053 of the International Association of Fire Fighters, which represents firefighters in Maryville, Tennessee, contracted with FireCo, LLC, a telemarketing company, to assist in raising funds by selling tickets to an oldies benefit concert. Michael Doherty and Alan Holmes, the president and treasurer of Local 4053, signed the FireCo contract.

Shortly after the telephone sales calls began, the City began receiving complaints from its citizens regarding the calls. Citizens complained that callers were pushy, rude, abrasive, harassing, misleading, confusing, and unprofessional. Some citizens reported that the callers used profanity, and many citizens believed that it was actually the City or the City’s fire department that was placing the sales calls. Citizens also complained that the callers threatened that if they did not buy tickets, “fire hydrants would be turned on their homes,” Dalmatian puppies would starve, and firefighters would have to come to citizens’ homes for dinner.

Eventually, the city manager warned that if the complaints did not stop, Doherty and Holmes would be fired. Doherty asked for details about the complaints, including the callers’ names, so that Local 4053 could investigate the complaints, but the city manager provided no details. Eventually, Doherty received a written reprimand which was placed in his permanent personnel folder.

Local 4053, Doherty and Holmes filed a federal court lawsuit against the City, alleging that the City retaliated against them for exercising their First Amendment free speech rights. When a jury awarded $15,000 to Doherty, $7,500 to Holmes, and $70,000 to Local 4053, the City appealed.

The Sixth Circuit Court of Appeals overturned the jury’s verdict, finding there to be no violation of constitutional rights. As the Court saw it, “the only activity that is relevant in this case is the Plaintiffs’ act of contracting with a third-party telemarketing organization to make fundraising phone calls. The Plaintiffs conceded that they allege retaliation by the City solely because of their involvement with the phone calls. There is absolutely no evidence in the record that the Plaintiffs were targeted because of their membership in the union or because of the union’s other community activities. Rather, all the evidence shows that they were targeted because they were in charge of this particular fundraising activity.

“Having identified the relevant conduct at issue, we now turn to the question of whether it touches on a matter of public concern. The Plaintiffs signed a contract with a telemarketing agency to sell concert tickets. This was a business transaction, and the conduct had a commercial focus. Furthermore, the subject of the contract, making phone calls, was also commercial in nature. Doherty testified at trial that the purpose of the phone calls was to sell a product – tickets to a concert. The act of signing a business contract does not fall within traditional understandings of matters constituting a public concern.

“The Plaintiffs argue that because the phone calls aimed to raise money for the union’s broad activities, some of which are matters of public concern, the act of contracting with a telemarketer to make those phone calls is also a matter of public concern. Even if we were to ignore the attenuated nature of the link between the contract and potential issues of public concern, the fact that the purpose of the FireCo contract was to raise money for union activities does not change the nature of the contract itself. Similarly, FireCo’s passing references during the calls to some of the union’s protected activities do not transform the nature of the calls (much less the contract to make the calls). The Plaintiffs urge us to adopt a rule that would extend automatic First Amendment protection to activities tangentially related to matters of public concern. We decline their invitation to inflate the First Amendment into an amorphous and unbounded source of protection.”

Doherty v. City of Maryville, 2011 WL 2312080 (6th Cir. 2011).