Where there’s smoke: Fire marshal states viable First Amendment claim

In a recent decision, the U.S. Court of Appeals for the Second Circuit, whose decisions control in New York, held a fire marshal employed by the Fire Department of the City of New York (FDNY) properly alleged a violation of his First Amendment rights. The case represents an erosion of earlier case law that made it difficult for public-sector employees to make out a case.

Background

FDNY Fire Marshal Scott Specht sued the city of New York and his FDNY superiors in New York Supreme Court alleging First Amendment retaliation, whistleblower claims under Civil Service Law (CSL) § 75-b, and claims of intentional infliction of emotional distress. He said his FDNY superiors told him to quash his ongoing investigation into a fatal fire and to alter his findings to avoid pointing fingers at a movie production crew that may have started the fire. He alleged that when he refused to go along, he was transferred to a lesser position and denied overtime opportunities.

The city defendants had the case moved to federal court and asked to dismiss Specht’s complaint. The district court granted the request, and he appealed.

Free speech in the public sector

On appeal, the Second Circuit reversed the district court on the dismissal of Specht’s First Amendment claim. The appeals court distinguished the case from U.S. Supreme Court precedent and its earlier decisions, all of which restricted the ability of a private-sector employee to claim First Amendment protections.