Firefighters' Facebook post critical of union official is free speech, says court

A U.S. appeals court on Friday said posts two Palm Beach County, Florida firefighters made in a private Facebook group criticizing a union official were protected free speech and revived their lawsuit claiming they should not have been disciplined for them.

A unanimous three-judge panel of the 11th U.S. Circuit Court of Appeals said a post by AJ O'Laughlin, who was running for president of the firefighters' union at the time, and a coworker's comment supporting him touched on matters of public concern even though they were made in an invitation-only Facebook group.

O'Laughlin had accused a union official of misusing paid time off that was donated by firefighters, and wrote "When elected this will stop," according to court filings. The other firefighter, Crystal Little, thanked O'Laughlin "for keeping them accountable" in an expletive-laden comment.

O'Laughlin and Little were subsequently issued written warnings for violating the county's social media policy, which prohibits employees from making postings that are unprofessional or could have a negative impact on employee morale and public perception.

The firefighters sued the county in Fort Lauderdale federal court in 2019, claiming the application of the policy violated their free-speech rights under the First Amendment of the U.S. Constitution.

In the 1968 case Pickering v. Board of Education, the U.S. Supreme Court held that public employees' speech is only protected by the Constitution if it relates to matters of public concern.

A federal judge dismissed the case in 2020, finding that the posts did not warrant free-speech protections because they were made in a private group and in the context of a union election that did not affect the broader public.

The plaintiffs appealed, and the 11th Circuit on Friday said the alleged misuse of taxpayer money was clearly a matter of public concern, so the First Amendment covered the firefighters' comments.

Candidates in any campaign will have a selfish purpose for speaking, Circuit Judge Kevin Newsom wrote, "but far from undermining their speech’s claim to First Amendment protection, that purpose at least arguably strengthens it."

William Amlong, a lawyer the plaintiffs, did not immediately respond to a request for comment. Nor did the Palm Beach County Attorney's office.

The panel included Circuit Judge Stanley Marcus and U.S. District Judge Richard Story of the Northern District of Georgia, who sat by designation.

The case is O'Laughlin v. Palm Beach County, 11th U.S. Circuit Court of Appeals, No. 20-14676.

For the plaintiffs: William Amlong of The Amlong Firm

For the county: Helene Catherine Hvizd of the Palm Beach County Attorney's Office

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