Is a Weather Forecaster Protected by the First Amendment?

No weather forecaster has been fired for refuting a false claim about a hurricane forecast. That could change: President Trump and his Secretary of Commerce, Wilbur Ross, have considered firing top employees at NOAA. The apparent reason is they publicly contradicted President Trump’s claim that Hurricane Dorian might hit Alabama.

The man in the middle is Dr. Neil Jacobs, the acting administrator of NOAA. The Secretary of Commerce instructed Dr. Jacobs to fix the agency’s perceived contradiction of the president.

Dr. Jacobs objected to the demand and was told that the political staff at NOAA would be fired if the situation was not fixed. These officials can de dismissed at will by the president.

That would be the end of the story, except that they were doing their jobs, they were not making a politically-motivated hurricane forecast, and they do not want to undermine the public’s trust in the National Hurricane Center’s warnings.

If he is fired Dr. Jacobs would have a strong First Amendment case.

There is whole category of First Amendment cases involving public employees. The courts use a “balancing test,” weighing the importance of the speech of the employee against the government interest.

The Trump team would either say (a) the forecast included Alabama, or (b) the lead NOAA administrator violated a presidential order, or (c) the NOAA leader made a political statement in contradicting the president, not a weather statement.

I will let you judge the believability of any of these reasons.

The employee speech side would be evaluated on three dimensions: (a) content, (b) form, and (c) context. If it’s an employee grievance—criticism of the workplace— Dr. Jacobs would lose. If it’s a political statement, Dr. Jacobs would likely lose, too: He is not entitled to use his position to state his political views.

Here, the content corrected an illegal alteration of a weather map (Sharpie-gate). The form was an official statement that didn’t say the president was wrong, just that Alabama was not in the hurricane’s path. The context is to make sure the public listens to NOAA, not President Trump, for hurricane warnings.

There is potentially more at stake here than a silly, sharpie alteration to a weather map. Labor economists could be fired for reporting bad employment numbers. Environmental scientists—already under fire—could actually lose their jobs over publication of research in a peer-reviewed scientific journal. The list goes on.

What is at stake here is whether an authoritarian president can fire people who do their jobs as science informs their profession. President Trump’s assault on truth is a Category 5 storm.