Earlier this month, a divided Sixth Circuit Court of Appeals reversed a public library employer’s summary judgment and granted the employee summary judgment on the §1983 First Amendment claim of a security guard who was terminated in 2020 after he briefly posted on his private FB account a highly offensive and hyperbolic meme criticizing the BLM protests. Noble v. Cincinnati & Hamilton County Public Library No. 23-3853 (6th Cir. Aug 9, 2024). In finding that his First Amendment rights outweighed the employer’s efficiency interests in maintaining a harmonious workplace, “there is no proof that any patron objected to [his] meme or even saw it. But, in any event, it was not a prerequisite to be a security guard at the Library that the guard share the politics of book borrowers or librarians.”
According to the Court’s opinion, the plaintiff never had
any performance or personality issues at work or with his colleagues in his two
years at the library. Some of his
colleagues were also “friends” on Facebook and saw meme he shared saying “All
Lives Splatter” and “Nobody Cares About Your Protests” which was deleted less
than 24 hours after he posted it and prior to any protests being held in Cincinnati. Although his FB account was private, it did refer
to his employment with the library.
Some of his FB friends were offended and sent screen shots to the
library director. He was confronted by
his manager and HR on June 1, after he had already deleted it, and explained
that he had thought it was funny. He was
suspended pending investigation, which revealed that his friends were concerned
about public perception. However, there was
no evidence that any member of the public saw or were offended by his sharing
of the meme (vs. his “friends” sharing the meme with their friends). In other words, the meme had been shared
more by people who said that they were offended than by him. There was also no evidence that he was
trying to offend particular co-worker or that he knew that any of his colleagues
had planned to participate in BLM protests.
He was ultimately fired on June 11 for violating the library’s
harassment policy and causing his colleagues and the public to lose confidence
in him. He filed suit and the trial
court granted the employer summary judgment.
The Court had no difficulty finding that the meme involved a
matter of public concern. The Court had
previously held that FB posts approving of the Tamir Rice shooting similarly
involved matters of public concern:
[He] provided the following
description of the message he meant to convey: “I didn’t care about the
protests. And if you’re going to protest, that’s fine, you have the right to do
so, but when you start breaking the law or stopping traffic or destroying property,
I don't agree it’s a protest anymore. You’re violating the law.” . . . Whether one agrees with [his] views or not,
there is no question that he spoke to a matter of public concern—namely,
whether the alleged violent and destructive tactics of BLM were appropriate
means to protest the deaths of George Floyd and others.
That the meme communicated this
message in an insensitive manner does not affect this analysis, because “[t]he
inappropriate or controversial character of a statement is irrelevant to the
question whether it deals with a matter of public concern.” . . . . For example, in Rankin, a public
employee responded to an assassination attempt on the life of President Reagan
with the remark that “if they go for him again, I hope they get him.” . . . That outrageous statement, the Supreme
Court held, was a matter of public concern. . . . If advocacy of killing the president can
be a matter of public concern, then the meme’s depiction of a vehicle running
over protestors does not detract from the conclusion that [the plaintiff]
communicated on a matter of public concern as well.
Unlike other courts, however, the Court found that the
plaintiff’s First Amendment rights outweighed the employer’s efficiency
interest.
In the aftermath of the police
shootings of George Floyd and others, there was nationwide debate over whether
the BLM protests were an appropriate response when they resulted in alleged
violence, destruction of property, and looting of businesses that had no relationship
to the shootings. . . . . The way in which [he] expressed his opposition to BLM
may not have been mainstream, but the sentiment that he wished to convey—that
the methods of the BLM protests were counterproductive—was by no means an
isolated segment of public opinion.
As to context, the Library fired [him] for a
post “made on his private Facebook page while he was at home and not working,”
id., which “raises more First Amendment red flags,” . . . There is no evidence that [he] took his
politics to work or that his views on the BLM protests or any other political
matter ever interfered with how he performed his job. To put this in context,
consider that the employee in Rankin expressed her wish for President Reagan’s
assassination during the workday.
We determine the scope of the
Library’s interests by considering whether [his] speech “(1) impairs discipline
by superiors or harmony among co-workers, (2) has a detrimental impact on close
working relationships for which confidence and personal loyalty are necessary,
(3) impedes the performance of [his] duties or interferes with regular
operations of the enterprise, or (4) undermines the [Library’s] mission.” . . . “Together, these factors center on the
[Library’s] effective functioning as a public agency.” . . . This interest increases “as the speech
becomes more controversial.” . . . And [his]
criticism of BLM was very controversial; indeed, it was directly opposite from
the political messages on the Library’s website.
Weighing these competing interests,
we hold that [his] interest in his speech outweighs the Library’s claimed
efficiency interest because no evidence indicates that [his] speech
significantly hindered Library operations. To begin, no member of the public
ever complained about [his] post. Nor is it likely that the public would have
seen the post: [He] kept the meme up for less than a day, his profile settings
limited public viewership, and he had few Facebook friends.
Granted, [his] speech was highly
distasteful, but the First Amendment protects abhorrent speech, and it does so
even if the speech makes others feel quite uncomfortable. . . . . Similarly,
the Supreme Court has held that the First Amendment protects individuals who
refuse to salute the flag, or even burn it, and who engage in homophobic
protests at military funerals, despite that such actions deeply offend many
people. . . . That is because the First Amendment does not
permit one side of a debate to use the government to cancel the other side. It
allows all perspectives, even the very offensive, to be heard.
A public employer need not wait
until an actual disruption to discipline an employee. . . . But its anticipation of disruption must
be objectively reasonable. . . . Without evidence that any member of the public
beyond a few Facebook friends saw the meme, the Library could not reasonably
anticipate any public backlash against the meme that would disrupt its
operations. And though the Library appeared to argue that it could anticipate
that [he] would run over his colleagues or protestors because [he] had access
to a Library vehicle as a security guard, the Library did not seriously raise
this argument at oral argument. The Library could not have reasonably
anticipated that [his] hyperbolic meme suggested that he would recklessly drive
any Library vehicle. In fact, [he] rarely even drove as part of his job and
there is no evidence that he was ever unsafe behind the wheel.
The Court distinguished prior decisions finding the employer’s
interest to outweigh the employee’s First Amendment rights where the employees’
FB posts had been “racially charged” or involved a racial
slur or were by employees who held leadership posts or worked closely with the
public. “Contrary to what the dissent suggests, the fact that [he] was a
public-facing employee does not alter this analysis. Again, there is no proof
that any patron objected to [his] meme or even saw it. But, in any event, it
was not a prerequisite to be a security guard at the Library that the guard
share the politics of book borrowers or librarians.”
. . . . That the Library fired [him] for
speech expressing a view contrary to the powers-that-be at that institution
casts doubt on its motive for firing him and undercuts its workplace harmony
interest.
. . . Here, the only injuries that resulted
from the speech were the alleged wounded feelings of certain co-workers who had
lost trust in him. . . . given [his] spotless record as a security guard prior
to the meme, there is strong indication that he would have again performed his
duties appropriately had he been allowed to retain his job, thus restoring that
trust. Absent evidence that [he] posed a threat or risk to fellow workers, his
hyperbolic speech alone was not enough to fire him. Given the short time [he]
kept the meme on his Facebook page, its limited viewership, and the lack of
public response, the Library could not have reasonably expected that [his] post
would incite disruption. Pickering does not give the Library carte
blanche to take away [his] means of livelihood based on his speech. The balance
favors [him], not the Library.
The Court not only remanded the case back to the trial
court, it directed the trial court to enter summary judgment for the plaintiff
security guard.
Dissenting, Judge Sutton preferred to give the Library broad
discretion as an employer against a public-facing employee who shared a meme
showing violence against BLM protesters.
Deciding whether [he] has a greater
interest in commenting on protests or whether the library has a greater
interest in managing its workplace leaves us with the ineffable task of
“judging whether a particular line is longer than a particular rock is heavy.” . . . Even if we could strike the right balance
between these competing interests, the task would give us the unenviable role
of acting like “legislators, not judges.”
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.
