Judge Rules for Kelvin Cochran (Another big religious freedom case in federal court)

Another big religious freedom case in federal court. And in this case, there's a ray of hope.

For more than three decades, Kelvin Cochran built a record of service and expertise that made him one of the most respected Fire Chiefs in the country. He was the first African-American Fire Chief in Shreveport, Louisiana. He was among the responders to Hurricane Katrina. President Obama appointed him as the U.S. Fire Administrator, whose job is to improve both fire prevention and response across the country.

And until a few years ago, he was the Chief of the Atlanta Fire Department, a job he would probably still hold if city officials had any respect for Cochran's rights to freedom of religion and freedom of speech.

Cochran got into trouble over a book he wrote on his own time for a small group that he led in his church. The book entitled "Who Told You That You Were Naked?," was directed at Christian men seeking to fulfill their biblical roles as "husbands, fathers, community and business leaders."

Six of the book's 162 pages—yes, that's 3.7 percent—addressed a biblical perspective on sexuality. As David French summed up, Cochran took "the completely conventional, orthodox Christian position that sex outside of male–female marriage is contrary to God's will," which "is the position of the Catholic Church and every orthodox Protestant denomination in the United States."

Unfortunately, "orthodoxy" is defined very differently at Atlanta's City Hall. When the contents of Cochran's book came to the attention of Mayor Kasim Reed, Reed ultimately fired Cochran, but not before saying "when you're a city employee, and [your] thoughts, beliefs, and opinions are different from the city's, you have to check them at the door."

That makes it sound like Cochran was fired for his beliefs; but the city denied that. Instead it claimed that he was let go because he didn't obtain permission before publishing the book.

The problem is that, constitutionally-speaking, the city cannot require employees to get permission before expressing their religious views.

Late last month, a federal court agreed. It concluded that the Atlanta pre-clearance policy "does not pass constitutional muster" because it does not "set out objective standards for the supervisor to employ."

As a result, the opinion continues, it "would prevent an employee from writing and selling a book on golf or badminton on his own time and, without prior approval, would subject him to firing. It's unclear to the Court how such an outside employment would ever affect the City's ability to function, and the City provides no evidence to justify it . . . The potential for stifled speech far outweighs an unsupported assertion of harm."

Unfortunately for Cochran, that glass is only half-full. The court rejected Cochran's claim that his rights to free speech and freedom of religion were violated by his firing.

Still, as Alliance Defending Freedom attorney Kevin Theriot emphasizes, the court ruled that Cochran's firing was unconstitutional. According to Theriot, who represented Cochran, the ruling "sets a precedent that says that government employers have to be very careful about how they restrict the speech of their employees when they're talking about non-work related stuff."

This is a real concern. Rules like Atlanta's have had a chilling effect on the free speech of people on platforms such as social media. People have legitimately feared the consequences of speaking up for traditional Christian beliefs even on their own time. This ruling is an important step in the direction of eliminating that chill.

Where does that leave Cochran himself? Despite media reports to the contrary, he's in a position to recover his lost wages and benefits. There's even a remote possibility he could get his job back.

In a just and sane world Kelvin Cochran would not have had to endure what he has endured. But I'm grateful for his courage and I pray that he'll receive some compensation for the wrong done to him.

For private employment the answers are:

“Can you be fired for legally attending a church on your own time?”
YES
“Can you be fired for legally buying a newspaper?”
YES
“Can you be fired for legally buying a firearm?”
YES

“The above are legal activities protected by the first and second amendments. Just as is the freedom to write and publish a book is a first amendment right.”

Again the 1st and 2nd are protections from the government. Your private company employment terms are between you and your employer with some law thrown in.

“See 42 U.S. Code § 1983 - Civil action for deprivation of rights

“Seems to me that a government agency firing someone for a rule that violates constitutionally guaranteed rights is retaliatory in nature and should afford the plaintiff the recovery of loss of past, current and future wages.”

I think so to, but losing a job does not in anyway deprive you of constitutional rights. The court ruled against the city’s law that regulated the publishing of his book. But absent that law could he still have fired for what he said in the book?

This ruling may be worth the read. You read it and let me know their reasoning!

The court seems to say that a local government can restrict speech but it may have gone too far but they do not know for sure because the SC has never explained what “too far” is and the fired guy did not make his case. It looks like the are open to ruling against the city if they can find the leal ammo to do so.

Sorry for this, from the ruling:

The Eleventh Circuit also addressed the issue of qualified immunity in the context of a public employee’s First Amendment rights in Busby v. City of Orlando 931 F.2d 764, 773-75 (11th Cir.1991). There, the Court explained:

The Supreme Court has never established a bright-line test for determining when a public employee may be disciplined in response to that employee’s speech. Instead, Pickering established a case-by-case balancing of interests test. Although a State cannot condition public employment on a basis that infringes the employee’s constitutionally protected interest in freedom of expression, an employee’s interest as a citizen in commenting on matters of public concern must be balanced against the state’s interest as an employer in promoting the efficiency of the public services it performs through its employees. Because no bright-line standard exists to put the employer on notice of a constitutional violation, this circuit has recognized that a public employer is entitled to immunity from suit unless the Pickering balance would lead to the inevitable conclusion that the discharge of the employee was unlawful. Accordingly, this court need not decide the precise result of applying the Pickering balancing test to Busby. Instead, we need only decide whether such a result would be so evidently in favor of protecting the employee’s right to speak that reasonable officials in appellees’ place would necessarily know that the termination of [Busby] under these circumstances violated [Busby’s] constitutional rights.
Busby, 931 F.2d at 773-74 (internal citations omitted) (alterations in orginal).

As Plaintiff explains, the denial of qualified immunity in Cook was based on the fact that “there was no evidence that [the plaintiff’s] speech caused a disruption.” Pl.’s Resp. to Defs.’ Mot. to Dismiss, Dkt. No. [15] at 32. Here, Plaintiff alleges facts which suggest the views expressed in his book caused a disruption from the perspective of the AFRD, City Council, and City leadership. See Compl., Dkt. No. [1] ¶¶ 139-44, 154, 157-59, 167 (describing an AFRD employee showing Plaintiff’s book to Councilmember Wan, Councilmember Wan bringing the book to the attention of City leaders, City leaders holding a meeting with Mayor Reed regarding Plaintiff’s book, and Mayor Reed and Councilmember Wan issuing public statements regarding Plaintiff’s book).

Plaintiff also alleges Mayor Reed issued a statement regarding Plaintiff’s termination in which he expressed his view that the material in Plaintiff’s book “is inconsistent with the Administration’s work to make Atlanta a more welcoming city for all of her citizens.” Id. ¶ 158. This view of Plaintiff’s speech introduces a distinct element not present in Cook or NTEU: public employee speech inconsistent with (at least in the defendant’s view) the government entity’s policies and practices. The Court does not now decide whether these distinctions ultimately bear on the constitutional analysis, but the distinctions do create uncertainty as to whether Mayor Reed’s alleged actions were unlawful. Because it is not clear to the Court in whose favor a Pickering balancing test would weigh based on the facts alleged, it cannot be said that Plaintiff’s rights were “clearly established.”

In other words, while the Court cannot say as a matter of law at this stage of the proceeding that the Pickering test was not violated, see supra, the Court can say that Plaintiff has not shown the Defendants would “necessarily know” that Pickering was violated as required to Cook and Busby. Accordingly, Defendants’ Motion to Dismiss is GRANTED with regard to Counts I, II, and IV against Mayor Reed.

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