The Line Between Free Speech and Social Media Abuse is CRYSTAL Clear....

Crystal Eschert of the Charlotte, North Carolina Fire Department

In the recent spiral of racial polarization, fueled by both long-time racial arsonists and Occupy Wall Street (OWS) and SEIU, “Anarchists” & misnamed “Progressives,” there have been a number of cases of actual internet crimes (the making of actual threats, planning attacks, etc.), which have rightfully resulted in some serious penalties. Unfortunately, there have also been a few examples of Municipalities that have abused their own social media policies.

First, there is the case of Aaron McNamara (an auxiliary police officer with the Fairview Park Police Department), who, according to the Cleveland Scene, resigned after getting caught commenting on multiple YouTube videos, referring to African Americans as "jungle monkeys," and other racially charged language. On a YouTube video titled "Hood fight." He also posted, “Abolishing slavery was the worst thing we could have done. These people should be exterminated. Unbelievable." (http://www.cleveland.com/fairview-park/index.ssf/2014/12/fairview_park_police_volunteer.html)

Those are horrific views that certainly make it clear that this person shouldn't be doing police work. It's to the good that this occurred when he was an Auxiliary Officer and wasn't yet on the Police payroll.

Then there's the case of Aaron Hodges, the former Nordstroms employee, who was fired after making what appear to be actual threatening (therefor CRIMINAL) posts/utterances on his Facebook page. A screen captured post of his said, “Instead of slamming the police...every time an unarmed black man is killed, you kill a decorated white officer, on his door step in front of his family." (http://time.com/3636220/nordstrom-aaron-hodges/)

Mr. Hodges has since said, “(The comment) is out there to make them see the humanity of the other side.” He’s admitted that the post was outrageous, but he said it wasn't meant to be taken literally.

And THAT’S the problem with draconian social media policies. While there are the very rare dangerous EDP’s (emotionally disturbed persons), like Ismaaiyl Brinsley, who posted actual threats to police on Instagram before actually carrying out such horrific acts, far more common are people (perhaps like Aaron Hodges and Aaron McNamara), who respond to other provocative, even irresponsible posts in anger...akin to “road rage.” It’s so ubiquitous that now-a-days, it probably should be called “internet rage.”

I am and have always been uncomfortable about draconian “social media policies,” not only because they’re too often unevenly applied and open to far too much “interpretation,” BUT that they appear to be open to some highly contentious and also highly profitable (for plaintiffs) litigation.

In the case of Mr. McNamara, I think it’s best that he NOT work in policing, although in the case of Mr. Hodges, he had the good sense to take the post down relatively quickly. A “screen shot” was sent to his employer (Nordstrom’s), resulting in his firing. I am more uneasy with the draconian outcome, in his case. YES, The comment was reckless, irresponsible and inciteful, but he did NOT directly threaten anyone, therefor Mr. Hodges committed no actual crime, AND, unlike Mr. McNamara, very quickly took his post down, signaling that upon reflection, even he could not stand by those statements.

I personally believe that NEITHER Mr. Hodges, nor Mr. McNamara literally meant what they initially posted in obvious anger, BUT how can we tell? Who wants to be the person who seemingly had “no issue” with the next Ismaaiyl Brinsley?

The views that Mr. McNamara posted are actual “hate speech” and aren't merely “offensive,” but indicate a deep antipathy for specific ethnic groups. So, while offensive speech is primarily what the 1^st Amendment protects, there are some views that should bar an individual from certain specific occupations. His would seem to make him a bad fit for policing, perhaps not as much for the EPA, or for Forestry work, just as an African-American who believes that the rural poor, in places like Appalachia, “just can’t learn,” is probably unfit for teaching, but perhaps not unfit for the small business administration, or the Social Security Administration.

The problem public employers face is that while a private employer may be able to terminate an individual over “controversial remarks that reflect poorly on the company,” a Municipality or government agency MUST be more far more cautious, as firing by such an entity comes very close to government abandoning its 1^st Amendment commitments, UNLESS the speech (A) rises to the level of a crime (threatening, or libelous speech), or (B) makes clear that that employee is unfit for their current employment assignment.

In yet another case of a cop posting angry, San Jose Police Officer Phillip White was suspended after officials learned of statements he made Saturday, December 16^th, from his Twitter account. In one of his tweets, White said: "Threaten me or my family and I will use my God given and law appointed right and duty to kill you. #CopsLivesMatter."

OK, angry, but a legitimate response to a perceived threatening post...if that's indeed what that was. There ARE numerous posters who've actually advocated killing police officers. Nothing criminal, nor even “offensive,” about that post by Officer White. Besides, anyone who would threaten a cop deserves to be more than merely “offended,” they deserve to be arrested and prosecuted for such “terroristic threats.”

However, in another Tweet, Officer White said, he would be off-duty, at the movies with his gun if anyone "feels they can't breathe or their lives matter." Mmmmmm...now THAT'S somewhat more...not merely "insensitive," but vaguely, albeit amorphously (like Mr. Hodges' post), threatening. THAT post probably would be rightly troubling to those running the San Jose Police Department. However, that post too, SHOULD have to be looked at in the context of the overall online dialogue. IF another poster threatened or baited Officer White, that should probably, at least to some extent, ameliorate his own intemperate response.

Far more troubling is what the Charlotte, North Carolina Fire Department did recently in terminating fire investigator, Crystal Eschert, who is white, for two seemingly innocuous Facebook posts to her personal Facebook page; the first read: “White guy shot by police yesterday near Ferguson...Where is Obama? Where is Holder? Where is Al Sharpton? Where are Trayvon Martins parents? Where are all the white guys supporters? So WHY is everyone MAKING it a racial issue?!? So tired of hearing it’s a racial thing. If you are a thug and worthless to society, it’s not race – You’re just a waste no matter what religion, race or sex you are!”

OK, FIRST of all, the post is factually accurate, in that an unarmed white male was indeed shot by a black police officer in Mobile, Alabama. (http://www.washingtontimes.com/news/2014/nov/27/white-teen-gilbert-collar-killed-by-black-cop-trev/?page=all). The white suspect apparently DID resist arrest and was also allegedly impaired by narcotics use.

In BOTH of the cases that she referenced (Trayvon Martin & Mike Brown) Grand Juries came to the independent conclusions that, (1) Mr. Martin attacked had physically Mr. Zimmerman before being shot and (2) that Michael Brown attacked officer Wilson inside his police cruiser, struggled for the officer’s gun (attempted murder) and was shot and killed attacking the car yet again. In short, her “concluding opinions” appear to be backed up by both those jury verdicts.

In another post Ms. Eschert wrote: “In my opinion, racism is so stupid, and I think that if you commit the crime, you’re a thug. I have a cousin who I say is a thug.”

OK, here again there’s nothing even remotely “offensive,” let alone "intemperate," as she DOES NOT even reference any specific case, but merely asserts that “racism is stupid,” (YES, it IS) and that it’s wrong to turn violent felons into Civil Rights heroes (that’s ALSO very true).

Ms. Eschert is suing the city of Charlotte, the Charlotte Fire Department and the Charlotte City Manager over “wrongful termination,” claiming that she was, in fact, fired over whistleblower activities she previously engaged in. (http://www.nydailynews.com/news/national/charlotte-fire-investigator-fired-facebook-comment-article-1.2053556)

If that is indeed the case, Charlotte’s going to be in for a rough time in the courts. Our “Whistleblower protections” have been pretty iron-clad as of late...AND they should be. HOWEVER, I don’t believe that’s the ONLY liability that the city of Charlotte has in this case.

As to the whistleblower violations, Charlotte City Councilwoman Claire Fallon said, “They hunted her down.” Marty Puckett, vice president of the Charlotte Fire Fighters Association noted that, “It’s no worse than other stuff I have seen other firefighters say in public posts.” IF the city of Charlotte did go after Ms. Eschert because of some unwanted “Whistleblower activity” on her part, they may be best served by seeking to “settle up” with her ahead of a costly and disastrous trial. (http://www.charlotteobserver.com/2014/11/25/5342208/fired-investigator-says-city-retaliated.html)

HOWEVER, even if such an accord is reached, I would strongly encourage Ms. Eschert to keep ALL of her other litigation options open. The firing, in this case, seems completely unjustified, unwarranted and unsupportable and makes the city’s “social media policy” appear entirely capricious and arbitrary, which itself SHOULD amount to criminality. Even the former local NAACP chairman and the city’s first black mayor has said that the termination was too harsh.

This COULD and probably well SHOULD wind up as a double jackpot for Crystal Eschert...and unfortunately a punch to the gut to Charlotte’s taxpayers.

In such an event, those taxpayers SHOULD be made aware that the (probably) coming fiscal calamity is entirely the fault of incompetents in local government, and not Ms. Eschert.