From today's opinion by Judge David Alan Ezra (W.D. Tex.) in Fox v. City of Austin:
In 2013, Dr. Andrew Fox ("Plaintiff") began volunteering as the Lead Chaplain at the Austin Fire Department ("AFD"). The chaplain program is part of AFD's Wellness Center, which houses numerous support services for firefighters, as well as other programming related to the physical and mental health of first responders. Plaintiff spent upwards of ten hours per week—all unpaid—ministering to AFD members and running the chaplaincy program.
Off AFD premises, Plaintiff maintained a blog where he discussed various aspects of the Christian faith. In 2021, Plaintiff began writing blog posts discussing "how God designed each person as male or female, and that sex is immutable." Specifically, he stated it is unfair to allow males to compete in women's sports. According to Defendants, the blog posts were calculated to provoke and "trigger" readers.
After hearing about the blog and finding it offensive, Lieutenant Xolochitl Chafino, AFD's LGBTQ Liaison, informed Chiefs Baker and Vires. At the time, Baker and Vires were unaware of the blog's existence. After some AFD members found the blog post upsetting and insulting, Baker and Vires met with Plaintiff to discuss their concerns. According to Plaintiff, the meeting went well and included "genuine[ness]" and "respectful dialogue." However, this meeting did not resolve the conflict.
Thereafter, Chafino printed out copies of the blog to solicit comments from AFD members, civilian employees, and outside individuals. Chafino also met with Plaintiff on multiple occasions. At one meeting, Chafino felt that Plaintiff stereotyped LGBTQ people and told Vires that she never wanted to meet with Plaintiff again. Moreover, she told Baker that AFD personnel would never seek services from Fox or the chaplain program again.
Baker and Vires directed Plaintiff write an apology for his blog post. Baker believed this would restore faith and confidence in the AFD chaplain program. Baker intended the letter to communicate that AFD personnel should feel welcome using the chaplain program, regardless of their identity or beliefs. However, Baker and Vires were not satisfied with the letter. Rather, Baker found it defensive and accusatory. Plaintiff then wrote a second apology. Baker found the second letter equally unsatisfactory and Plaintiff was terminated from serving as a volunteer chaplain….
The court applied the Pickering v. Bd. of Ed. (1968) test applicable to the government's action as employer; under that test, an employer can discipline or terminate employees for their speech, even on matters of public concern, but only if the harm caused by the speech to the employer's operation outweighs the value of the speech. (Among other things, this essentially allows a sort of "heckler's veto" under which, if enough people complain about the speech, it can indeed be restricted.) And the court concluded that the evidence wasn't clear on the degree of harm to the employer:
When balancing the interests, the Court will focus on "how the speech at issue affects the government's interest in providing services efficiently: it is the speech's detrimental effect on the efficient delivery of public services that gives the government a legitimate interest in suppressing it."
The Government argues it had a legitimate interest in terminating Plaintiff. The chaplain's role is to listen and comfort the firefighters, not provoke and divide. Chief Baker was also concerned that some AFD employees would choose to no longer seek help from AFD's mental health services. ("[Mental health is] a serious issue throughout the fire service…so if a member [doesn't] have faith that…they can go to… the chaplain service in a non- biased manner, then that's a problem for me as the fire chief…") ("I wanted to make sure I was not going to have any disruption because when [Lt. Chafino] reported to me that her and others [were] not going to use the chaplain service or Chaplain Fox, that was enough disruption for me to say 'hey I've got to do something immediately.'") Moreover, chaplains were sometimes called to emergency scenes to provide comfort to firefighters and community members. Chief Baker feared that these emergency operations could be disrupted if Plaintiff appeared at the scene. Moreover, Baker feared Plaintiff's speech would create a negative perception that the AFD would not serve all community members equally.
The Court finds that there is a genuine dispute of material fact regarding the impact that the blog had on the AFD. The parties vehemently disagree over whether those offended by the blog made up a small cohort of employees who never attended the Champlain services or whether the blog had a broader impact. For instance, Plaintiff argues that for the most part, AFD employees were unaware that Plaintiff even wrote a blog. However, at the hearing on August 15, 2024, Defendant described a chain of AFD employees who were aware of the blog and brought it to Chief Baker's attention.
Moreover, Plaintiff argues that there is no evidence that actual usage of the chaplaincy decreased. However, Defendants note that AFD employees stated that they refuse to attend the services because of the blog. Ultimately, there is a genuine dispute of whether the government's legitimate rationale for termination in the abstract is supported by the facts of this specific case.
This case is unlike Cochran v. City of Atlanta (N.D. Ga. 2017). In that case, a fire chief was terminated because of his religious speech. The court found that Plaintiff's status as the Fire Chief—and thus the head of a safety agency—also favored the City. The court found it was not unreasonable for the City to fear public erosion of trust in the Fire Department. Indeed, the court noted the expressive activities of a highly placed supervisory employee will be more disruptive to the operation of the workplace than similar activity by a low-level employee with little authority or discretion. Like in Cochran, in Nixon v. City of Houston (5th Cir. 2007), a police officer authored a monthly column in a local magazine. The officer identified himself as a police officer and wrote offensive and disrespectful comments about certain groups of citizens in the column, including derogatory remarks about minorities, women, and homeless individuals. The Court applied Pickering and found that the officer's articles were not protected by the First Amendment. The Court found that the articles written by the officer could negatively interfere with the police department's relationship with the community and would thus interfere with the efficient operations of the department.
However, the facts in Cochran and Nixon do not apply to this case. For one, the present case involves a voluntary chaplain. In this case, there is a genuine dispute as to whether his position has ever or could impact the fire department's relationship with the community. There is a dispute over whether the anyone would perceive his online blog to impact the creditability or trust in the fire department. The parties genuinely disagree as to whether the public tied Plaintiff to the AFD. Unlike in Nixon, Plaintiff never identified himself as a member of the AFD when writing the blog. However, at the hearing on August 15, Defendant said that he was identified as part of the AFD by virtue of a hyperlink to his Facebook page.
The Fifth Circuit has said a government's interest is stronger when a public employee has a policymaking or confidential position. But given the nature of Plaintiff's position and the fact that he provides emergency services [to] frontline firefighters, the Court cannot say that this factor is determinative.
"[R]eal, not imagined, disruption is required." And "[m]ere allegations of disruption are insufficient." In this case, there is a genuine dispute of material fact regarding the extent of the disruption that occurred within AFD. Therefore, the Court denies the cross motions for summary judgment on the free speech retaliation claim….
Because of this case, the case can presumably proceed to trial.
The court also concludes that Pickering should apply to the plaintiff's Free Exercise Clause claim, and that it yields the same result. The court then turns to the Texas Religious Freedom Restoration Act, which protects religiously motivated conduct, with no special provision for government employees, by requiring that any restrictions on such conduct pass the demanding "strict scrutiny" standard:
Defendants argue they have a compelling interest in ensuring that firefighters feel comfortable accessing mental health services due to the stressful nature of their jobs. Defendants also believe there is a compelling interest in preventing conflict and division among AFD personnel. As stated earlier, the Court agrees that these interests may be compelling in the abstract. However, there is a genuine dispute as to whether these interests apply in practice to the present case.
There is a genuine dispute of material fact regarding if or how Plaintiff's blogs impacted mental health services he provides to both AFD and the community at large. There is a genuine dispute of fact regarding whether the blog impacted the number of people who would feel comfortable attending chaplain services prospectively. Beyond the few initial employees who discovered the blog, AFD employees were unaware Plaintiff wrote a blog. However, there is evidence to suggest that more people became aware of the blog. The parties also present contested evidence regarding whether Plaintiff could be identified as an AFD volunteer chaplain through his blog. Therefore, there is a genuine dispute of fact regarding whether his blog discussing his religious beliefs could negatively impact the relationship between AFD and the Austin community. Moreover, there are questions of fact underlying whether Defendants' request for an apology was the least restrictive means in burdening Plaintiff's religious speech.
Finally, the court concludes that requiring the apology didn't violate plaintiff's freedom from speech compulsions, partly because "Plaintiff was asked to write the letters pursuant to his official duties as a volunteer chaplain" and the First Amendment generally allows the government to control an employee's speech when the speech is part of his official duties:
The purpose of the letter was to restore faith and confidence in AFD's official chaplain program. Chief Baker planned to send the letter out to the AFD community through official channels with the hope that all would feel welcome to continue to use the chaplaincy program.
The Court finds that it was permissible for the fire department to request an apology note. It does not violate the First Amendment to ask an employee or volunteer to make an official statement to maintain a harmonious and orderly workplace. While there is not much precedent on this issue, other courts have signaled that compelled apologies in similar contexts do not violate the First Amendment.
Requesting this letter does not violate the First Amendment's prohibition on compelled speech because this letter was going to be used as an official AFD communication and Fox was directed to write it as part of his duties as volunteer lead chaplain. When public employees speak pursuant to their official duties, employees are not speaking as citizens for First Amendment purposes.
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