The ABC has been central to a case involving paramedics with the New York Fire Department. (This case was brought to my attention by Lawrence T. Bennett, Esq, Program Chair, Fire Science & Emergency Management at the University of Cincinnati who publishes a regular newsletter on Fire and EMS Law (see https://ceas.uc.edu/academics/departments/aerospace-engineering-mechanics/fire-science/fire-service-law.html).
The gist of the case was that there was industrial action where the relevant union:
… launched a publicity campaign to address the wage disparity of its members and the difficulties faced by Union members in their performance of EMS services in and around New York City…. With the onset of the COVID-19 pandemic in March 2020, the campaign expanded to address the stress placed on members working during the pandemic and the lack of personal protective equipment (“PPE”)…
The ABC did a report on the pressures facing FDNY medics (you can see the story here). Members of the union agreed to participate and were interviewed.
Pfieffer and Nunez were featured in the video that accompanied the article; the video showed EMS members walking down a residential hallway and entering an apartment, with Pfeiffer and Nunez in their EMS uniforms performing patient care…. The video also showed the patient being removed from the residential building and placed into an ambulance and Nunez making a telephone call, and it was accompanied by an overlay text describing the patient, the patient’s physical condition, the interior of the apartment, the treatment being provided to the patient, and the reporter’s interpretation of the events.
The paramedics involved were put on restricted duties pending an investigation by the Fire Department. After about 2 months the restrictions were lifted and they were returned to duty.
The President of the union took action against the City of New York alleging that the Department had engaged in unlawful retaliation against the officers for exercising their rights under the first amendment to the US Constitution – the right to free speech.
District Court Judge Lewis J. Liman, U.S. District Court for Southern District of New York, recognised that the Department could restrict an employees free speech if ‘the plaintiff’s expression was likely to disrupt the government’s activities and that the harm caused by the disruption outweighs the value of the plaintiff’s expression’ (citing Pickering v. Board of Education 391 U.S. 563 (1968)). On the hand the
… Rugen’s speech was on a matter of public concern, so was the speech of Nunez, Pfeiffer, and Bonilla. They each spoke about the emotional toll that responding to the pandemic was having on their lives. They discussed the fear they faced about potentially passing on the virus to their loved ones and how that has caused them to adjust their behaviors. And they spoke about how people were reacting to COVID illnesses and about their views on individuals staying home to “ride  out” their illnesses instead of going to the hospital with a mild case of COVID. The speech addressed the general impact of COVID on emergency workers. … whether their speech was motivated by personal grievances as opposed to a desire to educate the community about a matter of public concern is not dispositive, as “a person who is ‘motivated by a personal grievance’ can still ‘be speaking on a matter of public concern.’”.
The court did not resolve the issue of whether the Fire Department had exceeded its rights to protect its legitimate activities. The application at this time was to confirm that there was an arguable case to go to the jury. As His Honour said:
Here, there is credible evidence that suggests Defendants restricted or suspended the individual Plaintiffs for a permissible reason, but there is also evidence from which a reasonable jury could find that the Defendants did so simply because they were employees who engaged in protected speech. The role of the Court is not to weigh that evidence and determine which is the more likely scenario. That must be left to the jury.
This case of course does not set a precedent here. We do not have an equivalent of the US First Amendment. In Australia a civil action will nearly always be before a judge alone, not a jury. None of the legal issues are applicable here. I report on this case simply because of the involvement of the ABC and the impact this story had on the firefighter/paramedics involved and because it is interesting to see the reach or impact of a news story in Australia.
This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.