Twenty-two years ago, two Firefighters, along with a Police Officer, were fired for the unofficial crime of Being a Moron in Public based on their presence, in blackface, in a spoof that was part of the annual Labor Day Parade in Broad Channel, Queens.
Their dismissals had less to do with their participation in "Black to the Future," a depiction of how a more-integrated version of the neighborhood might look by 2098 that was reportedly on a par with previous mockeries of Asians, Jews and gays, than an improvisation by Firefighter Jonathan Walters. He decided to hang from the back of the float while proclaiming that he was drawing attention to the death of James Byrd. Mr. Byrd was a black Texas man who had been dragged to his death by white racists who tied him to the back of their pick-up truck.
Not exactly the stuff of which great satire is made. And after the video of that shocking bit of insensitivity made it onto virtually every city local-TV news broadcast for several days, then-Mayor Rudy Giuliani told reporters in the City Hall Blue Room that while civil-service rules prevented him from immediately terminating Mr. Walters, Firefighter Robert Steiner and Police Officer Joseph Locurto, "They're never getting back into the Police Department or the Fire Department."
It was possible that they would be fired but gain reinstatement from the U.S. Supreme Court, he continued, but as far as he was concerned, "They can no longer be trusted to be public employees of the City of New York. Police officers and firefighters carry a very heavy responsibility. That is to treat people fairly."
'Lack Judgment, Maturity for Those Jobs'
When he was asked about their free-speech rights, Mr. Giuliani replied, "They have the right to make that statement. We have the right to be appalled by it. We have the right to come to the conclusion that they're irresponsible...that you lack the judgment or the maturity to be a firefighter or a police officer."
Which brings us to the Firefighter, not yet identified, who thought it would be a hoot, shortly after George Floyd's murder May 25, to post a photo-shopped picture of a naked black man sitting on his neck in place of the Minneapolis cop charged with the crime, Derek Chauvin. It was accompanied by the caption "Too soon?"
He did so—using his own name, according to one FDNY source—in a chat room for Engine Co. 303 in Jamaica, and a firefighter with an appropriate sense of outrage reported it. Department brass suspended the firefighter for 20 days without pay, then placed him on restricted duty while the Bureau of Inspections and Trials continues its investigation before making a recommendation on final punishment.
Two veteran firefighters, neither of whom wanted to be quoted by name, said they believed the penalty ultimately imposed by Fire Commissioner Daniel Nigro would be harsh but allow the Firefighter to keep his job.
The first one said he believed the initial sanction of just a 20-day suspension signaled the department's intentions. Referring to a likely fine that would accompany the discipline, he said July 7, "They will hit him with a nice, healthy penalty and they will transfer him." The move out of Engine 303 would sting more than transfers normally do for firefighters who have gotten comfortable working in a company, he added, because it constitutes "a very coveted assignment: a busy company. The guys and girls that work there love to work there."
He said he hoped Mr. Nigro would show some mercy, but added, "Not only don't you want to encourage moronic behavior, you want to discourage moronic behavior."
A Social-Media Disease
The other veteran firefighter, using the term for serious discipline, said the following afternoon, "I think he's gonna get a rip."
He spoke with the exasperation of someone who had counseled young firefighters about the dangers of making inappropriate comments online, and too often found the advice went unheeded.
"The administration has been telling these young guys for years that [social media's] an extension of the workplace, and these guys just don't get it," he said. "There's been ample stuff put out by The Job and the union," referring to the Uniformed Firefighters Association. In the firehouse, he said, "We tell 'em to keep it businesslike. They have these chat rooms within battalions. We have First Amendment protections [but] the issue comes up when you're in public...you can't do this stuff in the workplace."
The key question, he said, was whether the Firefighter believed that making the post in a company chat room meant it wasn't a workplace communication. "If he believed he was in a private situation," the veteran firefighter said, "and was ignorant of the fact that it was an extension of the firehouse, he has a First Amendment issue, no matter how vile it was."
Then again, the two Firefighters and the Police Officer who were fired by their respective Commissioners after Mr. Giuliani's public declaration that they weren't worthy to continue in their jobs had a First Amendment issue as well. They used it to get a favorable decision in Federal court five years after their dismissal, but it didn't pass muster on appeal.
Put Rudy, FDNY on Trial
The Broad Channel float debacle had occurred shortly after Mr. Giuliani was accused of stoking racial tensions unnecessarily by bringing a rude end—complete with buzzing NYPD helicopters—to the Million Youth March in Harlem. That became an issue in the trial before U.S. District Judge John Sprizzo, as did the less-than-stellar reputation the FDNY—which at the time had a firefighting force that was 93 percent white--had on race relations.
The attorney for Firefighter Steiner, Marvyn Kornberg, asked Fire Commissioner Tom Von Essen on cross-examination whether any firefighters had ever been fired for racial remarks.
"Unfortunately, no," he replied. "I think a lot of people should've been fired for making racial remarks."
In his autobiography, published the year before the trial, Mr. Von Essen wrote that he initially resisted terminating the two Firefighters because he was convinced they were not "evil, just stupid."
He testified that he was convinced the pair had to be fired not based on pressure from his boss, Mr. Giuliani, but by the reactions of some of his key FDNY aides to their behavior, particularly the mocking of Mr. Byrd's death by Firefighter Walters.
Judge Sprizzo was unconvinced. He ruled that the free-speech rights of the two Firefighters and Officer Locurto had been violated by the city, and ordered that they be reinstated and receive $300,000 they were owed in lost wages during the period when they were out of their jobs.
Reversal Set Precedent
But in 2006, the Court of Appeals overturned that ruling, stating, "The First Amendment does not require a government employer to sit idly by while its employees insult those they are hired to serve and protect...one's right to be a police officer or firefighter who publicly ridicules those he is commissioned to protect and serve is far from absolute." It went on to state that the employer's motive for firing the three men "outweighed the plaintiffs' individual First Amendment interests."
While the issue that produced the need for strong disciplinary action—white public employees mocking the murders of black men, in one case by two racist whites and in the other allegedly by a brutal, possibly racist cop—there are some potentially crucial differences that could lead to a different fate for the unidentified firefighter.
One is the issue of whether his conduct occurred within what could be considered a public forum. In contrast, there was no ambiguity—even though they were off duty—about the three fired employees putting their stupidity in the public square for the Broad Channel parade.
The politics of some issues is also different. Mr. Giuliani in the summer of 1997 had tapped a blue-ribbon commission to recommend changes in the Police Department after the brutalization of Abner Louima by a crazed cop less than three months before the mayoral election, but the following April he figuratively drop-kicked its report into a trash can. In the wake of the Million Youth March incident, he couldn't afford to be seen as soft on the Broad Channel miscreants. And he also didn't need extensive publicity about a firefighting force whose minority representation fell so far short of the NYPD's.
Wrong Judge to Anger
Roughly a quarter of the firefighting force today consists of people of color. But the FDNY wouldn't need a wrongful termination lawsuit to be brought to wind up in Federal court. It's already there, courtesy of a lawsuit brought by the Vulcan Society of black firefighters and carried forward by the Justice Department under President George W. Bush more than a decade ago alleging discrimination against black candidates in the hiring process. After a ruling against the city, the case wound up being settled in 2014 by the de Blasio administration for $98 million, and the administration of that settlement is still being overseen by U.S. District Judge Nicholas Garaufis, who once described the FDNY as "a stubborn bastion of white male privilege."
Commissioner Nigro, as well as Mayor de Blasio, will have to be mindful of how Judge Garaufis might react to the FDNY's handling of the case, which so far has received relatively little media coverage since the Daily News broke the story in late June.
There were also the divergent reactions from the two veteran white firefighters on the state of brotherhood in the FDNY. While one of them said, "I think that race relations inside the Fire Department is slowly getting better," the other one said of the naked black man image that caused the furor, "That type of humor has made the rounds thousands of times," although usually in a less-outrageous context
What will matter more is how the department's decision once it's made is received by the Vulcan Society. A former president, Fire Capt. Paul Washington, emphasizing he was speaking only for himself, said, "The only thing appropriate is firing him."
The current Vulcans head, Khalid Baylor, was more measured during a July 8 phone interview. "We are awaiting the results of the investigation the department is having," he said. "Then we're gonna hold a particular conversation about that situation."
'Have to Be Professional'
He continued, "There is a need for change. As city workers, we have to be held to a different accountability...we have to be professional—at the workplace and off."
Mr. Baylor added that it would be essential for the UFA and the Uniformed Fire Officers Association to be extensively involved in implementation of the changes. "We're looking for the two unions to be on board with social messaging in a positive way," he said.
He concluded, "There are always bad apples in a bunch, and if they stay there, they can spoil the barrel."
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