Editor’s Note: This article is part of a series of articles in which Curt Varone will address questions on important fire service legal issues. If you would like to submit a question, please email Shannon Pieper at firstname.lastname@example.org.
Our fire department has its own Facebook page and several stations (including mine) have created our own pages. Please correct me if I am wrong, but doesn’t the Facebook page belong to the creators, not the fire department? In other words, the fire chief cannot make us get rid of the station page, can she?
Determining the legal ownership of a Facebook page is not going to answer your question. Facebook may indeed consider the creators of a page to be the lawful owners so long as the creators are not misrepresenting their identity. The more important question is whether the fire department can limit firefighters from posting on social media in such a way that they are representing themselves as being part of a fire station within the fire department.
To answer that question, more information is needed. The first question: Are the individual fire stations part of the fire department or are they separate entities? What I mean is, are the individual fire stations independent entities, such as volunteer fire companies, who in turn are part of a larger county fire department or fire district? If a separate entity controls the individual fire station, the fire department’s ability to control the station’s social media activities will be a function of the political and administrative leverage that can be brought to bear.
Based on your question, I am going to assume your fire station is part of the same fire department and not independent. As such, it follows that you and your colleagues at the station level are subject to the fire department’s chain of command, and hence subject to the fire department’s policies.
Given the number of poorly worded policies out there, adopting another fire department’s policy could be inviting a trip to federal court should a member decide to challenge it.
The next question, and perhaps the most important determination that must be made, is whether the fire department is a governmental entity. If it is, then the fire department must respect the First Amendment rights of its members. If the fire department is non-governmental, the problem is much easier to solve. Non-governmental entities are not constrained by the First Amendment. Therefore, the fire department leadership can prohibit members from associating themselves with the fire department on social media as long as such actions are in accordance with its bylaws, charter and any other applicable law. Non-governmental entities have a greater ability to restrict social media activities than governmental entities.
If the fire department is a governmental entity, or due to its close connection to a governmental entity is considered to be a “state actor” for purposes of the First Amendment, it still has the right to control members from holding themselves out on social media as “spokespersons” for the department. However, the situation is more nuanced and must not infringe upon members’ protected speech.
While public-employee firefighters generally have a First Amendment right to speak as a private citizen on matters of public concern, they do not have a right to hold themselves out to the public as an official source of information for the department, nor post on matters that are not a matter of public concern. They also cannot engage in speech that causes actual harm or disruption to the mission and function of the employer. That is where your department’s social media policy comes into play.
The more important question is whether the fire department can limit firefighters from posting on social media in such a way that they are representing themselves as a fire station within the fire department.
It is essential that a government agency’s social media policy be drafted in a way that respects the First Amendment rights of its members while reserving the right to limit unprotected speech. Careful wording of the policy is necessary because even well intentioned and commonly used expressions such as “members shall not disparage the department” or “members shall not bring discredit to the department” will run afoul of the First Amendment.
Given the number of poorly worded policies out there, adopting another fire department’s policy could be inviting a trip to federal court should a member decide to challenge it. However, if done properly the department can control the social media activities of individual fire stations provided it does so in a manner that is consistent with the First Amendment.
Apart from First Amendment considerations, in departments where firefighters have a right to engage in collective bargaining, the social media policy must be implemented and enforced in a manner that respects the employees’ rights to engage in concerted activities. They key, once again, is the language used in the policy. In a collective bargaining environment, the policy cannot infringe upon the employees’ rights to engage in concerted activities for their mutual protection.
So to summarize, the answer to your seemingly simple question will turn on:
- Whether your fire department has the administrative reach to control station-level activities
- Whether your fire department is governmental
- Whether your fire department has a social media policy that is enforceable under the First Amendment and any collective bargaining laws that may apply