Joshua Lipscomb, a firefighter in his fourth year with the Nashville Fire Department, is facing possible suspension for his tweet about license-plate readers.

In a post on Feb. 3, Lipscomb called out members of the Nashville City Council as “white supremacists” for approving a controversial pilot program that some regard as unwarranted government surveillance.

“I hate feeding into the illusion that America’s government and existence is legitimate, so I’m no fan of voting. But the majority of Nashville City Council is white supremacists. I know it’s boring, but millennials have to start caring about local elections,” Lipscomb wrote in the tweet.

The Fire Department concluded that Lipscomb had violated department policy and, pending a hearing, he could be suspended for 16 days.

The parameters of this case can be found in three pivotal U.S. Supreme Court cases.

For decades, law governing the free speech of public employees was driven by two decisions — Pickering v. Board of Education (1968) and Connick v. Myers (1983) — that established a balancing test.

Using the Pickering-Connick test, a court would first have to determine whether the employee’s comments were about a matter of public concern. Lipscomb’s comments about government legislation certainly met that test.

Then a court would have to determine whether the employee’s right to free speech was outweighed by disruption to the workplace. Again, Lipscomb’s comments were about a communitywide policy and didn’t have anything to do with the functions of the fire department. His bosses were irked, but that’s not much of a disruption.

In 2006, though, the U.S. Supreme Court made it tougher for public employees to prevail in cases like these. In Garcetti v. Ceballos, the Court concluded that public employees have no right to free-speech protection in the regular conduct of their duties.

In this case, Lipscomb used an alias — “Josh Black” — that he also uses as a comedian. In his tweet, he did not identify himself as a member of the fire department or even as a government employee. His social media post had nothing to do with his job.

These Supreme Court precedents suggest that Lipscomb should prevail on free-speech grounds.

A number of Nashville City Council members see it the same way. Eleven council members wrote to the Nashville Fire Department this week asking that it “affirm Mr. Lipscomb’s right to share his opinions.”

The department hearing is set for March 10.

This is one of a series of articles examining current free-speech controversies in the context of past judicial decisions.

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