History virtually repeated itself when the Federal District Court in Michigan strongly criticized a gag rule designed to prevent firefighters from talking to the media. In International Association of Fire Fighters Local 3233, et al, v. Frenchtown Charter Township (2003), the court had to deal with a town ordinance and fire department regulation limiting firefighters' speech. The ordinance read:

“The Fire Chief … shall be the only authorized person who may release facts regarding fire department matters, fires or other emergencies to the news media. All other personnel shall refer all media inquiries to the Chief.… All questions, concerns or issues regarding the policies, procedures, practices and/or operation of the fire department shall be first addressed to the appropriate Union representative. The Union representative and/or executive committee for the Union shall address the issues to the Chief.” [The court's opinion is available at www.mied.uscourts.gov/_opinions/Battanipdf/mobfirefighter.pdf.]

The controversy arose because a Michigan Occupational Safety & Health Administration enforcer found the fire department in violation of OSHA rules for “training, incident command and organizational structure.” A newspaper learned of the story and tried to interview the union president. However, the firefighter didn't respond to the request, claiming fear of discipline under the regulation. Instead, two firefighters and a citizen sued to invalidate the rule under the First Amendment. At a preliminary hearing the existence of another restriction was disclosed:

“No information relative to the business or policy affairs of the fire department shall be furnished to persons not connected therewith, except as authorized by the Fire Chief pursuant to the Freedom of Information Act.”

The plaintiffs amended their complaint, alleging that this section also violates the First Amendment. The court carefully considered the issue: “As an initial matter, the parties agree that for a public employee to prevail on a First Amendment claim against his employer, the employee must satisfy both of the following elements:

“1) The restricted speech addressed a matter of public concern, and

“2) The interest of the employee (and perhaps the public) in speaking on the matter outweighs the employer's interest in enhancing public services through the restriction.

“Plaintiffs argue that ‘Fire Department matters’ is a subset of speech that is generally of public concern. Plaintiffs offer two particular topics of public concern on which they claim to have been deterred by the restrictions from speaking: the fire department's MIOSHA violations and labor-relations matters within the fire department. The potential violation of the law by government and public organizations is clearly a matter of paramount public concern. Likewise, labor disputes and discussions surrounding collective bargaining are also matters of public concern.”

The district court held that the speech was clearly of public concern and that the attempts to limit the speech interfered with public access to information. The court then engaged in the balancing test required by the Supreme Court. The importance of this case is that the court found that prior restraints require a different balancing test than that used in punishing speech after the fact. The court makes clear that prior restraints have to meet a much higher standard under United States v. National Treasury Employees Union 513 U.S. 454, 468 (1995), known as NTEU, instead of the much more deferential Pickering analysis, as defined in Pickering v. Board of Education of Township High School District 205, Will Cty., 391 U.S. 563, 568 (1968):

“Frenchtown is correct that the Pickering test is the one normally used for evaluating restrictions on public employee speech by government employers. Pickering, however, is only applicable where the employee has been punished after speaking in an ad hoc disciplinary action. When, in contrast, the restriction on speech takes the form of a pre-speech threat of punishment that deters employees from engaging in the speech, the proper test is the more stringent one elucidated in NTEU.

“The NTEU standard is harder on a government employer than the Pickering standard in at least two important ways. First, whereas the Pickering test only requires the court to weigh the punished employee's interest in speaking against the government, the NTEU test weighs against the state the combined interest of all employees whose speech is restricted by the rule plus all members of the public who would have an interest in hearing the restricted speech. Secondly, under Pickering, the government need only show how the punished employee's speech may have affected the efficiency of public services, while under NTEU, the government must show that the speech being restricted necessarily would have impacted the actual operation of the government. In this way, the government ‘must demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way.’”

The court considered it critical that when speech was, in effect, whistle-blowing, the disruption component of the balancing tests has to take that into account:

“Plaintiffs go on to assert that even if Frenchtown could assert some kind of interest in preventing disruption and workplace inefficiency, these interests lose their force when the speech being suppressed is of a whistle-blowing character, such as with the MIOSHA violations in the instant case. Plaintiffs contend that although workplace harmony and efficiency are generally legitimate employer interests, disruption caused by the exposure of governmental wrongdoings does not impair those interests. This is so because the disruption caused by whistle-blowing, in the long view, promotes the public services provided by the employer.”

The town defended itself by claiming that the town has to be able to stifle firefighters' speech in the interest of discipline.

“Frenchtown responds that its fire department is a paramilitary organization, and that firefighters must be prevented from being able to comment without supervision on fire department performance. Specifically, Frenchtown alleges that such license would ‘impair discipline by superiors, have a detrimental impact on close working relationships … impede the performance of the speaker's duties, and impair harmony among co-workers by destroying morale and confidence.’” Frenchtown cites several cases that it claims support the balancing of interests in this case in its favor.

The court footnoted a number of police cases applying NTEU to similar claims and indicated it was not inclined to endorse a sweeping restriction on all speech.

“Plaintiffs are correct that Frenchtown has provided no evidence that its interests are seriously threatened by the speech it seeks to restrict. Frenchtown offers hypothetical reasons why its restrictions might help the Fire Department, but its justifications are vague and generalized, like those rejected by the NTEU court. Frenchtown does not offer any proof, i.e., from the days before the Ordinance, that allowing the speech currently restricted would impair discipline or intra-Departmental relationships…. Even if Frenchtown could show some actual injury to the atmosphere in the Fire Department, this injury would not be sufficient to keep the firefighters from speaking about MIOSHA violations, for example. The firefighters could not be kept from whistle-blowing because tension in the workplace is recognized as a natural consequence of employees holding their employers accountable for acting unlawfully.”

The court's decision doesn't leave much room for any prior restraints on employee speech. It is in fact a reaffirmation and broadening of a 1998 Providence firefighters case. However, the Frenchtown case may be important for several reasons. Providence Firefighters Local 799 v. City of Providence, 26 F. Supp. 2d 350, 355 (D.R.I. 1998) clearly put chiefs and departments on notice that prior restraints on public speech concerning matters of public interest are strongly disfavored by the courts. They can no longer use defenses based on an unclear legal requirement. Civil rights cases such as Frenchtown can lead to damages injunctions and attorney's fees.

More importantly, these cases elevate whistle-blowing to a heavily protected area of speech. The original NTEU case did not involve speech that was related to the employee's job. It simply prohibited payment to any government employee for any kind of writing. The Providence and Frenchtown cases clearly are hostile to the use of department discipline to limit media contacts or whistle-blowing. Chiefs who don't get the message could pay substantial damages in the future.

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Vincent M. Brannigan is an attorney and a member of the Maryland and District of Columbia bars. A professor in the Department of Fire Protection Engineering at the University of Maryland, he is also a lecturer at the National Fire Academy. His father, Francis Brannigan, is the author of Building Construction for the Fire Service.