Nashville council rejects settlement of firefighter's free speech suit: 'Litigate this'

Nashville will continue fighting a First Amendment lawsuit filed by a firefighter who was demoted for disparaging social media posts about George Floyd protesters — even if it takes petitioning the U.S. Supreme Court, Nashville's Metro Council affirmed Thursday.

Tracy Turner, a Nashville Fire Department captain, was demoted in 2020 to the rank of firefighter for six months over a series of "racially inflammatory" Facebook posts. On an account that used his real name and identified him as a fire captain, Turner called people protesting police brutality after the killing of George Floyd "the stupidest people on the planet" and "animals." He also referred to people supporting Black Lives Matter as "thugs."

Turner sued Metro in 2021, arguing his demotion was retaliation for exercising his First Amendment right to "political expression as a private citizen."

Metro's attorneys say the fire department did not violate Turner's First Amendment rights, because his statements damaged Nashville Fire Department's mission and disrupted its operations. A federal district court judge rejected Metro's attempt to close the case without a trial, making it unlikely Metro would prevail in a bench trial in front of the same judge.

But the council on Thursday soundly rejected a resolution to settle the case for $105,000. Instead, Metro will take its chances in front of the 6th U.S. Circuit Court of Appeals, where success may be "a crapshoot" depending on judges' subjective interpretations, Metro Legal Director Wally Dietz told council members.

Council members listed several reasons to push forward: to better define the lines for government employee social media policy, to protect public trust in government services, and to make a stand against government employees disparaging residents they serve.

"I don't believe that we've violated this person's rights, and I think this is something that we need to litigate to the mat," District 6 Council member Clay Capp, an attorney and former public defender, said Wednesday.

The council voted against the settlement 0-31, with Council members Jennifer Webb, Jeff Eslick and David Benton abstaining.

What's at stake

Dietz and Associate Director of Law Allison Bussell said they believe Metro's fire department was correct to discipline Turner.

A private citizen "has the full panoply of First Amendment rights," Dietz explained, but a government employee's rights are balanced against those of the government.

"As a government employee, he is expected not to do anything, especially as identified as a Metro employee, that jeopardizes Metro's reputation in the community and gives rise to significant concerns in the community about whether Metro can adequately provide service to them," Dietz said.

U.S. District Judge Eli Richardson denied Metro's request for summary judgment, but noted that the balancing test "well may be judge-specific," with different judges reasonably reaching opposite conclusions.

In light of Richardson's opinion, Metro Legal posed the settlement to Metro Council. Settling the case for $105,000 (including $8,000 in back pay from Turner's six months of demotion) could prevent Metro from incurring hundreds of thousands of dollars of additional costs should the case, and any subsequent appeal, move forward.

Barring Richardson changing his mind for his final ruling on the case, Metro will appeal at the 6th Circuit. Should Metro lose on appeal, it would be precedent-setting for all federal courts in Tennessee and the rest of the states covered by the 6th Circuit. In that event, Metro would petition the U.S. Supreme Court to review the case, Dietz said.

Council members determined those risks are worth taking.

District 25 Council member Jeff Preptit, a civil rights attorney, said Turner's statements fit the criteria for government employee speech that can be disciplined.

"How can his fellow Black firefighters trust that he will have their backs when charging into a blazing building when he refers to Black citizens and those who call for reform as 'animals' and 'thugs'?" Preptit said. "How can Black citizens trust that he would faithfully fulfill his duties to provide services and care when he views them as 'animals'? How can our community trust our institutions when those who occupy them spew racially motivated vitriol? The facts and the law demand that we reject the settlement."

At-large Council member Zulfat Suara said the outcome of this case is more weighty than the money Metro stands to win or lose.

"When we look at things in terms of dollars, sometimes we lose the value and the core and the essence and the soul of who we are as people, and this is one (case) that speaks to that," she said.

Different outcome for firefighter who called council 'white supremacists'

Danny Yates, a retired firefighter and president of Nashville IAFF Local 140, urged council members to approve Turner's settlement. He pointed to the First Amendment case of former Nashville firefighter Joshua Lipscomb, who was suspended in 2022 for calling city council members "white supremacists" in a social media post.

Lipscomb, a comedian, made the post under the name Sir Joshua Black after the council approved a pilot program for license plate reader technology. He did not identify himself as a Nashville Fire Department employee.

Eleven Metro Council members signed a letter supporting Lipscomb's attempt to appeal his suspension. Lipscomb ultimately sued Metro, and the council approved a $450,000 settlement in December 2022.

"Captain Turner expressed his opinions on social media concerning people who set fire to our historic courthouse, and who looted businesses and destroyed property on Lower Broad," Yates said. "He called a few people some names just like (Lipscomb) did. Even though Captain Turner was expressing his opinion, he did not receive a letter of support. Instead, an administrative member of the NFD, several council members and at least one state representative publicly shamed him and called for his termination."

Several council members rebuffed this comparison.

District 35 Council member Jason Spain said Lipscomb's comments were directed at the Metro Council — a government body — but Turner's comments were directed at the public he's supposed to protect.

District 1 Council member Joy Kimbrough, a criminal defense attorney, agreed.

"Mr. Turner made specific statements about a protected class, whether it be based on race, sex, sexual orientation, a handicap," Kimbrough said. "Mr. (Lipscomb) made a statement regarding a government body. You should analyze the government. You may have to criticize the government. That's much different."

This article originally appeared on Nashville Tennessean: Nashville council won't settle firefighter's free speech lawsuit