Another Blogger Bites the Dust: Fired by Newspaper For Rude Postings on Personal Weblog

From delaware online (from the Wilmington News Journal):

A reporter for the weekly Dover Post newspaper was fired Monday for offensive comments made on his personal weblog.

Matt Donegan, a copy editor and reporter for the newspaper, was fired by Dover Post Editor Don Flood after a reader reported the blog entries to Sussex County radio talk-show host Dan Gaffney.

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"I looked at the site, and sure enough it was there. Immediately afterward I verified with [Donegan] that it was his site and this is what he had written," Flood said. "And at that point I fired him."

Flood said some of the blog entries were "extremely offensive and just contrary to what we believe here."

Of the more controversial postings on the site, Donegan wrote about being awoken at night by loud African-American neighbors:

"I bet James Earl Ray [King's assassin] was woken up by black people yelling pointlessly in the streets the night before he killed your civil rights leader."

In his defense, Donegan stated that his firing is "a freedom-of-speech issue, and I don't think I was treated fairly in this case . . . . What I wrote ... was rude, but it doesn't make it wrong."

Well, Matt, I'm all for First Amendment speech protections when relevant, but because you work for a private employer, there is no state action involved in your being fired and, thus, no constitutional issues.  On the other hand, you may be able to claim protection if your state has a statute that protects legal off-duty conduct of employees, but I'm not sure if Delaware has one of these laws yet.

Further, although it might help if Matt had some form of just cause protection beyond employment-at-will, even if he does, the newspaper may be able to claim that such just cause existed as it should not have to keep an employee which through his conduct placed the employer in a bad light in the community.  In other words, as long as the employer can show that the employee's off-duty activity adversely impacted legitimate employer concerns (such as community credibility as a newspaper), I think Donegan may just be out of luck.

Finally, even if Matt had been a public employee, he probably would not have fared much better because he does not appear to have spoken on a "matter of public concern" under Connick, and even if we assume that he did, the balancing of interests done under Pickering would probably lead to the conclusion that the substantial disruption to the newspaper caused by Donegan's off-duty conduct would cause the balance of interests to tip in favor of the public employer.

Query whether a case like this comes out differently, assuming Donegan was a private sector employee again, if he did not hold such a high profile job in the community as a newspaper reporter and, therefore, would not have been as likely to be seen as the "face of the employer" to the community.

Hat Tip: the raw story

PS