Death tends to be something of an equalizer. Aside from someone so awful that death presents relief, most of us (Felicia Sonmez notwithstanding) defer to condolences or, at worst, silence. After all, don’t speak ill of the dead isn’t merely a well-established social norm (unlike the many invented last week and now being forced upon us), but a sound one.

Death is sad. Whether we love someone or not, loved ones are left behind who deserve some sympathy. When the death is tragic, what sort of animal would use the opportunity to attack the deceased?

Who cares another dead cop probably against gun control. Cops exist for the government to exercise its monopoly on violence. They want the whole world to stop when one of theirs goes down.

How many idiots I had to transport with honor guard their dead bodies from coronavirus because they were all too stupid to wear masks or get vaccinated. All cops are for is protecting the rich property owners and the status quo. Everything else is a farce. Fuck the police.

If this sounds remotely familiar, it should. It’s a fairly common rant by left wing social media activists going into their sophomore year of grievance studies at a small private college no one has ever heard of and hoping to make the varsity antifa team.  But that’s not who the words came from this time.

The comments were allegedly made by firefighter Kevin Newcomb in a group chat on WhatsApp following the death of Det. Cesar “Echy” Echaverry, who was shot in the head during a confrontation with an armed robbery suspect Monday night.

Three details stand out. First, these comments were not made publicly, but in a group chat. Newcomb wasn’t using his public position as a firefighter to condemn police, but expressing his personal views within a discrete group of people. Who and how many are unknown. Perhaps it was unreasonable of Newcomb to believe his statements would remain within the group and that no one in the group would be so outraged by his assertions that he would not reveal them publicly.

Second, this rant was generated by the death of a cop shot in the head on the job. No matter how twisted one’s view of cops may be, how filled with simple-minded hatred, it’s really hard to condemn a cop who was just shot in the head when confronting an armed robbery suspect. And there appears to be no particular bitch about “Echy,” the detective who was murdered, but just the generic, simplistic, “all cops are bastards” type of griping.

Third, Newcomb was a firefighter, whose job is to save lives and whose job requires that he  and his coworkers maintain a functional working relationship with police.

After word of Newcomb’s statements broke, the Miami fire chief sought to mend fences.

“It is the foundation of our working relationship and the source of our respect for one another,” Fire Chief Joseph Zahralban said. “We continue to stand in solidarity with our brothers and sisters in law enforcement, alongside the Echaverry Family and the entire Miami-Dade Police Department during this difficult time.”

Soon after, Newcomb was fired as a Miami firefighter.

Miami Fire Rescue Chief Joseph Zahralban confirmed the firefighter had been fired in a statement acknowledging the post, saying the firefighter had “demonstrated a disregard for human life, demonstrated a violent and antagonistic stance towards civil servants and represented conduct unbecoming of a Miami Firefighter.”

But what about Newcomb’s First Amendment right to speak his mind, even if his words don’t please the police department and were, well, stunningly offensive under the circumstances.?These may not be a concern for courthouse bombers, but this was a firefighter. Public employees don’t lose their right to free speech by putting on a uniform, but they do accept a more narrow limit to what speech is protected. Under Pickering v. Board of Ed., the speech must survive a two-prong test.

1. Is the speech about a matter of public concern?
2. On balance, does the employee’s interest in speaking outweigh the impact on the employer?

As this was “off-duty” speech, the concerns of Garcetti v. Ceballos, where the employee’s speech may be attributed to the employer, aren’t implicated.

While commentary about the conduct of police is certainly a matter of public concern as a general matter, here the commentary arose upon consideration of a detective who was just murdered. Perhaps it would be different had this been a discussion about cops getting COVID after refusing to mask, particularly as it impacted the fire department in its function to transport police officers with COVID to the hospital, but it wasn’t. This was about the tragedy of a cop shot in the head, and there isn’t a deep well of public concern about why he deserved it just for being a cop.

As for balancing Newcomb’s interest in spewing his personal hatred of cops relative to his employer’s need for police and firefighters to work together for the sake of the public as well as firefighters, there is little question but that the employer’s interests dwarf Newcomb’s personal feelings of anger.

But the fact that Newcomb’s words were not said in public, but rather only on WhatsApp gives rise to concern that Pickering, decided in 1968, failed to address. This was not speech uttered for public consumption, or even with the expectation that it would go viral and blow back on Newcomb. Can a firefighter not express his anger, even his outrageously stupid takes, within a small circle of friends?