Appeals court: Fire chief's comments not protected by First Amendment

The appeals court said the Supreme Court has recognized that "governments have an interest in exercising some degree of control over their employees' words and actions in order to ensure the efficient provision of public services."

The court also said it was clear Foley was "speaking in his official capacity and not as a citizen."

"Here, under circumstances which indicate that Foley was speaking as Chief, members of the Board [of Selectmen] did not violate Foley's free speech right when they concluded that it was inappropriate for Foley to address budgetary and staffing issues at the scene of a fatal fire," the court said.

Foley might have hoped to reach more of the public because he was speaking in his official capacity, but the very fact that he was meant that his remarks would not be protected by the First Amendment, the court said.

The court said there was a "delicate balance" that needed to be struck between government employees' rights to speak out on matters related to their employment and "the interest of a government employer in controlling employee speech that contravenes the employer's goals."

The court noted, in a 17-page opinion written by Judge Norman Stahl, that if Foley had voiced his feelings in a different way -- speaking out at a town meeting, writing a letter to the editor, or even talking to the media in a different setting -- it might have changed the character of his speech.

Emmanuel Labranche, 17, and Valensky DuGuaran, 10, his half-brother, were trapped inside the house on Union Street. Firefighters found their bodies in an upstairs bedroom.

"I can't promise you that there would have been a different outcome," Foley told the Globe after the fire. "All I can tell you is that the operation would have been more enhanced by additional staffing."