Mishawaka Police officer Jason Barthel has been told to stop selling T-Shirt in his spare time. There is nothing illegal about the Indiana officer selling shirts, but these t-shirts say “Breathe easy, don’t break the law.” They are in direct response to t-shirts being worn in protest over the decision of a New York grand jury not to indict officers in the death of Eric Garner who died in Staten Island from a chokehold while saying that he could not breathe. “I Can’t Breathe” has become a rallying cry for those protesting police abuse of minorities. However, Barthel wants to sell a counter message that supports police. While there has been vandalism of stores selling the t-shirts, they reportedly remain high selling items.
Barthel owns a uniform store and came up with the slogan to, in his view, bring people together. (I am a little surprised that an officer can wear his uniform and badge for a private advertisement if that is indeed his Mishawaka uniform).
As noted today in another story involving unpopular speech by a paramedic, I have previously written about concerns that public employees are increasingly being disciplined for actions in their private lives or views or associations outside of work. We have previously seen teachers (here, here, here, here, here, here, here, here, here, here, here, here), here, here, students (here and here) and other public employees (here and here and here) fired for their private speech or conduct, including school employees fired for posing in magazines (here), appearing on television shows in bikinis (here), or having a career in the adult entertainment industry (here).
In this case, Barthel is selling a t-shirt in his private time that would clearly be protected as political speech in any other context. Police and their supporters have been wearing the shirts. In New York, they read “I Can Breathe. Thanks to the NYPD.” Yet, three South Bend city council members — South Bend City Council members Oliver Davis, Henry Davis Jr. and Valerie Schey— want him to stop, saying that it sends a “divisive message.” It is not clear if selling “I Can’t Breathe” t-shirts would be deemed as divisive. That t-shirt has appeared at national sporting events and other occasions, including a recent basketball game at nearby Notre Dame. The point is that an effort to force Barthel to stop selling the shirts should be preceded by a content-neutral showing that the city has a yet to make this demand. Obviously, if these city council members are just asking for the change, there is nothing wrong with making such a suggestion. However, for a public employee, there is a risk of possible retaliation or discipline or even termination as we have seen in other cases.