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Justices find email is constitutionally protected speech

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A trial court erred in granting summary judgment to a fire chief and township in a firefighter’s suit following his termination by the chief for sending a personal, political email that the chief believed contained false statements of fact. The firefighter’s email was actually constitutionally protected speech, the Indiana Supreme Court held Thursday.

Bradley Love, a volunteer and part-time firefighter, responded on his personal email account to an email he received regarding the candidate he was supporting for Sugar Creek Township trustee. In the email sent to a few people, Love claimed the Sugar Creek Fire Department has given new sport utility vehicles to lieutenants and captains, and they drive them all over the state; the fire department doesn’t make runs after 4 p.m.; and other claims regarding the fire department.

Fire chief Robert Rehfus was forwarded the email and decided to fire Love because he claimed it contained false statements of fact. Rehfus was supporting a different candidate for trustee.

Love filed a suit under 42 U.S.C. Section 1983 against Rehfus, individually and in his official capacity, and against the Sugar Creek Township arguing his First and Fourteenth Amendment rights were violated. The trial court granted summary judgment in favor of the defendants. The Indiana Court of Appeals reversed.

In Bradley J. Love v. Robert Rehfus, et al., No. 30S01-1004-CV-162, the justices reversed the trial court, finding that Love’s email had constitutional protections under the test set forth in Pickering v. Board of Education, 391 U.S. 563 (1968) and its progeny. There were no genuine issues of material fact as to the facts considered under the Pickering balance – that the public employee was speaking as a citizen and speaking on a matter of public concern – and Love’s speech was protected public-employee speech under the Garcetti-Connick-Pickering test, wrote Justice Frank Sullivan.

The defendants didn’t show that Love’s email had any potential to create difficulties maintaining discipline or loyalty or interfered with working relationships in the fire department. Also, nothing suggested that writing and sending the email interfered with Love’s ability to perform his job or the regular operation of the department. The email can’t be considered a personal attack on Rehfus because it doesn’t reference him by name or position, Justice Sullivan continued.

“The government was not justified in treating Love different from any other member of the general public,” he wrote.

Love argued that the township could be liable for Rehfus’ actions based on Pembaur v. City of Cincinnati, 475 U.S. 469 (1986), because Rehfus had final policymaking authority for the township. The justices found summary judgment in favor of either party on Love’s claim of municipal liability under Section 1983 is inappropriate. An inquiry needs to be made as to whether Rehfus had final policymaking authority regarding the employment of part-time, volunteer firefighters, not whether he was the final policymaking authority with regard to all employment matters for the township or within the department.

The justices ordered on remand that the trial court determine who the final policymaker was, and if it wasn’t Rehfus, determine whether that official regulated to Rehfus the relevant final policymaking authority.

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  1. I just wanted to point out that Congressman Jim Sensenbrenner, Senator Feinstein, former Senate majority leader Bill Frist, and former attorney general John Ashcroft are responsible for this rubbish. We need to keep a eye on these corrupt, arrogant, and incompetent fools.

  2. Well I guess our politicians have decided to give these idiot federal prosecutors unlimited power. Now if I guy bounces a fifty-dollar check, the U.S. attorney can intentionally wait for twenty-five years or so and have the check swabbed for DNA and file charges. These power hungry federal prosecutors now have unlimited power to mess with people. we can thank Wisconsin's Jim Sensenbrenner and Diane Feinstein, John Achcroft and Bill Frist for this one. Way to go, idiots.

  3. I wonder if the USSR had electronic voting machines that changed the ballot after it was cast? Oh well, at least we have a free media serving as vicious watchdog and exposing all of the rot in the system! (Insert rimshot)

  4. Jose, you are assuming those in power do not wish to be totalitarian. My experience has convinced me otherwise. Constitutionalists are nearly as rare as hens teeth among the powerbrokers "managing" us for The Glorious State. Oh, and your point is dead on, el correcta mundo. Keep the Founders’ (1791 & 1851) vision alive, my friend, even if most all others, and especially the ruling junta, chase only power and money (i.e. mammon)

  5. Hypocrisy in high places, absolute immunity handed out like Halloween treats (it is the stuff of which tyranny is made) and the belief that government agents are above the constitutions and cannot be held responsible for mere citizen is killing, perhaps has killed, The Republic. And yet those same power drunk statists just reel on down the hallway toward bureaucratic fascism.

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