A federal judge ruled this week that Atlanta had justification for firing Fire Chief Kelvin Cochran after he published a book condemning homosexuality and distributed it to subordinates. The Alliance Defending Freedom (ADF), the anti-LGBTQ hate group that defended Cochran, still claimed a victory because the judge ruled against the city’s rules requiring “pre-clearance” before city employees can publish outside materials.
In late 2013, Cochran self-published a book called Who Told You That You Were Naked? Overcoming the Stronghold of Condemnation, which directed Christian men to conform to conservative sexual morality. This included the direction that women should consult with their husbands before making decisions for themselves, as well as a sweeping condemnation of “sodomy, homosexuality, lesbianism, pederasty, bestiality, and all other forms of sexual perversion.” In 2014, he proceeded to distribute the book (in which he identified himself as Atlanta’s Fire Chief) to subordinates in the Atlanta Fire Rescue Department, including at least a few men who did not ask for a copy before receiving one. After complaints were filed later that year, the city investigated Cochran’s actions and subsequently suspended him before ultimately firing him in early 2015 — quickly turning him into a martyr for anti-gay conservatives.
In her decision on various pre-trial motions, District Judge Leigh Martin May, an Obama appointee, ruled against most of ADF’s objections to the firing. The firing did not violate Cochran’s First Amendment rights, she explained, because the city had valid concerns that what he had published contributed to a hostile work environment and could have been used as evidence of discriminatory evidence.
In particular, she highlighted his “opinion that the death of all individuals who engage in homosexual and extramarital sex would be celebrated” as grounds for the city fearing “public erosion of trust in the Fire Department.” For example, an individual could contend the department response time to an emergency was insufficient because of their sexual orientation. Employees would likewise have a similar concern, given their jobs require they risk their lives and they may no longer trust Cochran’s leadership because of his views.
In a footnote, May knocked down Cochran’s defense of these views by summarizing what he had written in his book:
Plaintiff argues that because he also contends that “all have sinned” and all “need a Savior,” Plaintiff’s specific assertion was not a condemnation of homosexuals. But the Court finds that even taking the facts most favorable to Plaintiff, it is uncontroverted that Plaintiff states those who engage in homosexual and extramarital sex — like those who engage in pederasty and bestiality, among others — are unclean and their deaths will be celebrated, regardless of whether others may also need a Savior for redemption.
The book “caused such an actual and possible disruption that it does not warrant First Amendment protection in the workplace,” May wrote. She thus ruled against ADF’s claims that the firing constituted free speech retaliation, freedom of association retaliation, or viewpoint discrimination.
Where May did find in Cochran’s favor was his challenge to Atlanta’s “pre-clearance policies,” rules that require city employees to seek approval before pursuing outside paid work. The rules are underinclusive, she explained, because there is an exception for high-level employees to speak at conferences and on panels, and overinclusive, because they apply to outside employment “even if it is plainly untethered from the employee’s job.”
This policy 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 is 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 rules also lack any objective standards for what is considered “impropriety,” so there would be no consistent way for the city to enforce them. May thus concluded that the rules constitute prior restraint and unbridled discretion, but still ruled against ADF that they violated Cochran’s free exercise of his religion.
Essentially, May ruled that Atlanta cannot require employees to get pre-approval for speech, but that it was still justified for firing Cochran over his particular speech and the way he distributed it. ADF didn’t win on its free speech or religious freedom arguments, and is left to decide if it still wants to pursue a case against the city based solely on its challenge to the pre-clearance rules. It seems unlikely from her ruling that such a case could actually result in a reinstatement for Cochran.
This is evident in the way ADF is trying to spin its “victory.” As Cochran’s attorney Kevin Theriot wrote Wednesday, “This win protects all City employees wanting to engage in ‘controversial’ speech — whether that be what the Bible has to say about marriage or what Charlie Brown and the Bible have to say about Christmas.” This is mostly true, except that “controversial” speech can still get an employee in trouble when it outright condemns protected classes of people, as it did Cochran.