Two weeks ago, a unanimous Sixth Circuit reversed a summary
judgment for the City of Cleveland involving the termination of an EMT officer for
offensive comments about Tamir Rice posted on his private Facebook page. Marquardt
v. Carlton, No. 19-4223 (6th
Cir. 8-19-20). The plaintiff denied
posting the comments and asserted that he deleted them within hours as soon as
he discovered them. However, his
co-workers/friends had reported the comments and he had been promptly fired. The trial court had found that the comments
were not protected by the First Amendment because they related to a private
matter rather than a matter of public concern. However, the Sixth Circuit found
that the comments could be protected as discussion of a public concern, although
it remanded so that the trial court could determine whether the statements were
protected by the First Amendment and whether the employer’s efficiency interest
outweighed the employee’s interest.
According to the Court’s opinion, the plaintiff had been an
EMT officer. He claimed that while a
friend was visiting that friend posted on the plaintiff’s Facebook account during
non-work hours while plaintiff slept.
The Facebook account did not identify him as a City employee and was
visible only to his friends. The plaintiff
claimed that he discovered the post a few hours later and immediately deleted
it. In the meantime, his cousin had
responded and he had apparently replied.
Some co-workers apparently
reported it to the City and, following a hearing, he was fired for his posts
violating the City’s social media policies and not relating to a matter of
public concern. He filed suit that this
violated his First Amendment rights. The trial court found that the posts related
to only private interests and not public concern.
The comments at issue related to the shooting of Tamir Rice
fourteen months earlier. Rice’s death provoked a national debate over
the use of lethal force by the police. The
event was back in the headlines because a few days prior to the posts, a grand
jury had declined to indict the police officer and it had been revealed that the
City had mistakenly billed Rice’s family for the ambulance to the
hospital. The post essentially
contended that Rice deserved to get shot for waiving around his toy gun and
scaring people in the park and that he was glad he was dead. It referred to Rice as a “ghetto rat” and regretted
that the plaintiff did not get to shoot him that day.
To assess whether a public employer impermissibly retaliated against an employee for his speech, we ask three questions: one, whether the employee engaged in protected speech; two, whether the action taken against the employee would discourage an individual of “ordinary firmness” from engaging in the activity that led to his discipline; and three, whether the employee’s protected speech was “a motivating factor” behind the adverse action taken against the employee. . . . The first in this series raises further questions of its own. For in resolving whether the employee engaged in protected speech, we employ a separate two-part test. We ask first whether the speech was on a “matter of public concern,” and if it was, we balance the interests of the employer and employee, asking whether the “employee’s free speech interests outweigh the efficiency interests of the government as an employer.”
In this case, the trial court found that the posts were not
protected speech because the comments did not relate to a matter of public
concern. The Sixth Circuit reversed and
remanded the case back to the trial court to resolve the remaining questions
about the employer’s efficiency interest and, if necessary, the ultimate retaliation issue.
Speech involves a matter of public concern when it can be “fairly considered as relating to any matter of political, social, or other concern to the community.” . . . To resolve the public/private distinction, we look to the “content, form, and context of a given statement, as revealed by the whole record.” . . . .For whether speech is shocking or inappropriate is irrelevant to whether it concerns a public matter.
The gist of the posts was that the police shooting was
justified. “Given the widespread local and national scrutiny of the Rice
shooting, these aspects of the posts directly relate to a “subject of general
interest and of value and concern to the public.” The death of Rice “was no private matter.” The Court found the comments to be analogous to
similarly offensive comments following the assassination attempt on President Reagan,
expressing the hope that the next attempt was successful, and those of the Westboro
Baptist Church members at military funerals.
While the trial court had focused on the comments' alleged pleasure at the
death of a twelve-year old boy to concern only private interest,
these disturbing first-person sentiments do not, as a matter of law, alter the broader subject of the speech or transform it into a “personal grievance.” The First Amendment is not so fragile that its guarantees rise or fall with the pronouns a speaker selects. And expressions of opinion, even distasteful ones, do not become matters of personal interest simply because they are phrased in the first person or reflect a personal desire.
There was nothing in the posts reflecting a personal or
professional knowledge or dispute with Rice, which might have turned it from
speech on a matter of public concern to a “private beef.”
[E]ven if the more extreme excerpts from the posts could somehow be construed as involving matters of personal interest, the “public concern/private interest analysis does not require that a communication be utterly bereft of private observations or even expressions of private interest.” . . . . Rather, the relevant question is whether the communication “touches ‘upon matters only of personal interest.’”
The posts did not lose their protected nature by virtue of
the fact that they were visible only to the plaintiff’s “friends.” “[S]peech
need not be communicated to the general public to be on a matter of public
concern. . . . Whether one’s public expression comes from the ink of a quill
pen, the stroke of a keyboard, or the tapping of an iPhone, that expression is
entitled to First Amendment protection under the same strictures.”
Finally, the context of the posts supported a finding of
public concern.
The known context gives no indication that the speech concerned primarily a matter of Marquardt’s personal interest. Whether the posts were spontaneous expressions or long-developed ideas, their substance still reflects matters of public concern because they relate to a “matter of political, social, or other concern to the community.” . . . .That fairly describes the circumstances surrounding the Rice shooting, which generated intense public debate and quickly became a matter of public discussion. As the posts touch on these same issues, they too address a matter of public concern.
At the end of the day, the trial court on remand will need to evaluate whether the employer’s efficiency interest outweighed the
plaintiff’s First Amendment rights because “the government, when acting as an
employer, may regulate employee speech to a greater extent than it can that of
private citizens, including to discipline employees for speech the employer
reasonably predicts will be disruptive.”
NOTICE: This summary is designed merely to inform and alert
you of recent legal developments. It does not constitute legal advice and does
not apply to any particular situation because different facts could lead to
different results. Information here can change or be amended without notice.
Readers should not act upon this information without legal advice. If you have
any questions about anything you have read, you should consult with or retain
an employment attorney.
