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Extramarital Affair? Let's Just Call It Exercising Your First Amendment Rights

By Bruce Carton

It obviously takes guts to be a firefighter. But I say it takes a special kind of guts to be a firefighter who has an extramarital affair with a subordinate, gets demoted for it, and then argues to the 11th U.S. Circuit Court of Appeals that the demotion violates your First Amendment right to "intimate association." I'll spare you the long version of the facts of Starling v. Board of County Commissioners, which include: a separated-but-not-yet-divorced-from-his-wife "rescue captain" (Mr. Starling) in the Palm Beach County Fire Rescue Department a subordinate firefighter (Ms. Smith) who worked for and had an intimate relationship with the rescue captain assorted affairs and threesome-propositions involving others in the PBCFRD; and a demotion from rescue captain to ?firefighter/paramedic? The rescue captain argued that the demotion violated his First Amendment right to intimate association, but the lower court dismissed his case on a motion for summary judgment, concluding among other things that "Starling's First Amendment right to intimate association with Smith was not clearly established." On appeal, the 11th Circuit steered clear of addressing whether the First Amendment protects intimate, extramarital association, and said that it would "assume arguendo that Starling's right to intimate, extramarital association with...

Full post as published by Legal Blog Watch on April 07, 2010 (boomark / email).