Lately, we've been seeing more cases in which public-sector employees accuse their governmental employer of violating the First Amendment to the U.S. Constitution. Such claims can arise in many ways, but with the proliferation of social media and the ability to instantaneously publish information, people often express their views so quickly that they don't take the time to think them through. But a person's words can have unintended consequences, and when those consequences involve adverse employment action, the employee whose words got him into trouble may claim First Amendment protection.
The U.S. 4th Circuit Court of Appeals (whose rulings apply to all South Carolina employers) recently reviewed a First Amendment claim by an employee who ran afoul of his employer's social media policy. Read on to see how the court resolved the dispute.
Kevin Buker began working as a paramedic for the Howard County (Maryland) Department of Fire and Rescue Services (HCDFRS) in 1997. In 2012, Chief William Goddard promoted Buker to the rank of battalion chief and assigned him to the second battalion as its commander. According to Goddard, as a battalion chief, Buker was responsible for managing the day-to-day field operationsas well as ensuring that the department's written policies and procedures were followed.
As a paramilitary organization, the HCDFRS executes the enforcement of its orders in a hierarchical manner that requires employees to strictly follow a chain of command. At the top of the chain of command is the fire chief, followed by deputy fire chiefs, assistant chiefs, battalion chiefs, and, lastly, first responders. Although the rank of battalion chief is positioned at the lower end of the chain of command, Goddard described it as the most critical leadership position in the organization because battalion chiefs directly supervise first responders.
In 2011, the fire chief and the public information officer began drafting a social media policy for the HCDFRS, partially in response to national debate over the use of social media in fire and emergency services departments. Throughout the drafting process, internal stakeholders-including Buker and the other battalion chiefs-were given the opportunity to review and comment on the forthcoming policy.
The HCDFRS's decision to develop a social media policy was also spurred by a Howard County volunteer firefighter's Facebook posting of a photograph of a lynching depicted by a brown beer bottle hanging from a noose surrounded by white beer cans with paper cones for hoods. In a comment accompanying the photograph, the volunteer firefighter said that he wanted to "go fishing for mud sharks/there are way to many here in Maryland. They are not good to eat though, I hear they taste like decayed chicken." (Note that all of the Facebook comments quoted in this article have been reprinted without edits.)
On November 5, 2012, the HCDFRS issued General Order 100.21, titled "Social Media Guidelines," which set forth the department's policy regarding the use of social media by HCDFRS personnel. Under the social media guidelines, the HCDFRS prohibited personnel "from posting or publishing any statements, endorsements, or other speech, information, images or personnel matters that could reasonably be interpreted to represent or undermine the views or positions of the [fire department], Howard County, or officials acting on behalf of the Department or County."
The social media guidelines also barred HCDFRS employees "from posting or publishing statements, opinions or information that might reasonably be interpreted as discriminatory, harassing, defamatory, racially or ethnically derogatory, or sexually violent when such statements, opinions, or information may place the Department in disrepute or negatively impact the ability of the Department in carrying out its mission." Additionally, the social media guidelines prohibited personnel from posting any information or images involving off-duty activities that might impugn the reputation of the HCDFRS or any member of the department.
On December 6, 2012, the HCDFRS issued General Order 100.22, titled "Code of Conduct," which was "aimed at ensuring members of the Department maintain the highest level of integrity and ethical conduct both on and off duty." In relevant part, the code of conduct prohibited HCDFRS personnel from intentionally engaging in conduct, through actions or words, that is disrespectful to or otherwise undermines the authority of a supervisor or the chain of command and from publicly criticizing or ridiculing the department, Howard County government, or their policies.
The code of conduct also required employees to conduct themselves in a manner that reflects favorably on the HCDFRS at all times, whether they're on and off duty. The code of conduct prohibited employees from engaging in conduct unbecoming to the HCDFRS, defined as any conduct that reflects poorly on an individual member, the department, or county government; that is detrimental to the public trust in the department; or that impairs the department's operation and efficiency.
On January 20, 2013, Buker was watching news coverage of a gun control debate in his office. While he was on duty, he posted the following statement to his Facebook page: "My aide had an outstanding idea . . . lets all kill someone with a liberal . . . then maybe we can get them outlawed too! Think of the satisfaction of beating a liberal to death with another liberal . . . its almost poetic . . ." Twenty minutes later, Mark Grutzmacher, a volunteer paramedic, replied: "But . . . . was it an 'assault liberal'? Gotta pick a fat one, those are the 'high capacity' ones. Oh . . . pick a black one, those are more 'scary.' Sorry had to perfect on a cool idea!" Six minutes later, Buker "Liked" Grutzmacher's comment and replied, "Lmfao! Too cool Mark Grutzmacher!"
Not surprisingly, the Facebook posts worked their way up the chain of command. They were reviewed at the command level, and Buker was told to look over his recent Facebook posts and remove anything that was inconsistent with the department's social media policy. Although he maintained that he was in compliance with the social media policy, Buker removed the January 20 posts. He wasn't done, however.
On January 23-a few hours after he informed Assistant Chief John Jerome that he had removed the posts-Buker posted the following to his Facebook wall:
To prevent future butthurt and comply with a directive from my supervisor, a recent post (meant entirley in jest) has been deleted. So has the complaining party. If I offend you, feel free to delete me. Or converse with me. I'm not scared or ashamed of my opinions or political leaning, or religion. I'm happy to discuss any of them with you. If you're not man enough to do so, let me know, so I can delete you. That is all. Semper Fi! Carry On.
One of Buker's Facebook friends then replied, "As long as it isn't about the [HCDFRS], shouldn't you be able to express your opinions?" Buker responded:
Unfortunately, not in the current political climate. Howard County, Maryland, and the Federal Government are all Liberal Democrat held at this point in time. Free speech only applies to the liberals, and then only if it is in line with the liberal socialist agenda. County Government recently published a Social media policy, which the Department then published it's own. It is suitably vague enough that any post is likely to result in disciplinary action, up to and including termination of employment, to include this one. All it took was one liberal to complain . . . sad day. To lose the First Amendment rights I fought to ensure, unlike the WIDE majority of the Government I serve.
Another of Buker's Facebook friends then commented, "Oh, your gonna get in trouble for saying that too." Buker replied, "Probably . . ."
After the new posts were brought to management's attention, a review was conducted. On February 25, Goddard served Buker with charges of dismissal referencing (1) his January 20 and January 23 Facebook posts, (2) his "Like" and reply to Grutzmacher's January 20 comment, (3) his replies to comments about his January 23 post, and (4) his "Like" of an offensive February 17 post. The charges of dismissal asserted that Buker's posts violated the HCDFRS's code of conduct and social media guidelines.
In particular, the fire department asserted, among other things, that Buker's Facebook activity improperly:
- Adopted and approved Grutzmacher's comment, which had racial overtones and was insensitive and derogatory in nature;
- Reflected a failure to grasp the impact and implications of his comments on his role as a battalion chief, a leadership position in which he was responsible for enforcing departmental policies and taking appropriate action when the people he supervised violated those policies;
- Demonstrated repeated insolence and insubordination by replacing the January 20 post with another tirade mocking the chain of command, the HCDFRS, and the county; and
- Interfered with HCDFRS operations and caused disruption in the department's chain of command and authority.
Goddard gave Buker an opportunity to rebut the specific charges at a pretermination meeting held on March 8. Following that meeting, Goddard terminated Buker's employment on March 14, 2013.
The ensuing litigation
On October 12, 2013, Buker sued the HCDFRS in federal district court, seeking reinstatement and damages. He alleged that his Facebook posts were a substantial motivation for his termination, and by terminating him, the HCDFRS impermissibly retaliated against him for exercising his First Amendment rights. He also alleged that the fire department's social media guidelines and code of conduct, as drafted and applied to him, violated the First Amendment by impermissibly restricting his ability to speak on matters of public concern.
After information was exchanged and depositions taken, the HCDFRS requested summary judgment (dismissal of the claims without a trial), arguing that Buker's Facebook activity didn't involve matters of public concern and his interest in speaking out didn't outweigh its interest in minimizing disruption. The HCDFRS later filed a second motion for summary judgment on Buker's claims that its policies were unconstitutionally overbroad or vague and constituted prior restraints on his right to free speech. The district court granted the HCDFRS's first request for summary judgment on March 30, 2015.
In dismissing the case, the district court concluded that Buker's January 20 Facebook posts and "Like" were unprotected speech because they were "capable of impeding the [fire department]'s ability to perform its duties efficiently." The district court further concluded that his January 23 posts and February 17 "Like" similarly didn't amount to protected speech because he failed to show that he was speaking as a citizen on a matter of public concern. The district court's order didn't address the HCDFRS's second motion for summary judgment.
On June 22, 2015, the HCDFRS revised its social media guidelines and code of conduct. The revised social media guidelines eliminated many of the previous prohibitions on employees' private use of social media. The revised code of conduct didn't include any of the previous version's provisions that Buker had challenged. Highlighting those changes, the HCDFRS asked the court to dismiss the second challenge as moot, arguing the revised policies didn't contain the provisions Buker challenged as overbroad, void for vagueness, or prior restraints. The district court thus denied the HCDFRS's second motion for summary judgment as moot and granted the motion to dismiss on August 12, 2015.
Buker timely appealed the district court's award of summary judgment in favor of the HCDFRS on his First Amendment retaliation claim and the dismissal of his challenge to the social media guidelines and code of conduct on mootness grounds.
4th Circuit's analysis
The court of appeals set out the standard for a public-sector employee to establish a claim for retaliatory discharge under the First Amendment. The employee must satisfy a three-pronged test by showing that:
- He was a "public employee . . . speaking as a citizen upon a matter of public concern [rather than] as an employee about a matter of personal interest";
- His "interest in speaking [about] the matter of public concern outweighed the government's interest in providing effective and efficient services to the public"; and
- His "speech was a substantial factor in the employer's termination decision."
The court pointed out that there is a balancing test: The First Amendment doesn't protect public-sector employees when their speech interests are outweighed by the government's interest in providing efficient and effective services to the public. Therefore, public-sector employees must accept certain limitations on their freedom.
In determining whether Buker's Facebook posts and "Likes" addressed matters of public concern, the 4th Circuit looked at the content, context, and form of the speech at issue in light of the detailed facts set out above. The court found that the "liberal," "assault liberal," and Second Amendment gun rights posts and comments implicated a matter of public concern. Buker's January 23 post describing the HCDFRS's social media guidelines and expressing concern that they infringed on his First Amendment rights also addressed a matter of public concern.
However, the court found that some of the Facebook activity that prompted Buker's termination didn't implicate matters of public concern. For instance, his "Like" of an image depicting an elderly woman raising her middle finger titled "for you Chief" on the heels of the HCDFRS's investigation into his January 20 and 23 Facebook activity was merely an employee grievance not protected by the First Amendment.
Having concluded that at least some of the Facebook activity prompting Buker's termination implicated matters of public concern, the court then had to determine whether his interest in speaking about matters of public concern outweighed the fire department's interest in providing effective and efficient services to the public. Factors relevant to that inquiry include whether the public-sector employee's speech:
- Impaired supervisors' ability to maintain discipline;
- Impaired harmony among coworkers;
- Damaged close personal relationships;
- Impeded the performance of his duties;
- Interfered with the operation of the institution;
- Undermined the mission of the institution;
- Was communicated to the public or to coworkers in private;
- Conflicted with his responsibilities within the institution; or
- Abused the authority and public accountability his role entailed.
The court concluded that the HCDFRS's interest in efficiency and preventing disruption outweighed Buker's interest in speaking in the way he did about gun control and the department's social media policy.
First, Buker's Facebook activity interfered with and impaired HCDFRS's operations and discipline as well as working relationships within the department. Fire companies have a strong interest in promoting camaraderie and efficiency as well as internal harmony and trust, and the court therefore accorded substantial weight to HCDFRS's interest in limiting dissension and discord.
In addition, the court noted that Buker's Facebook activity significantly conflicted with his responsibilities as a battalion chief. It observed that the expressive activities of a highly placed supervisory employee are more disruptive to workplace operations than similar activity by a low-level employee with little authority or discretion. Moreover, Buker's January 20 post, made while he was on duty and in his office, advocated violence against certain classes of people as well as the use of violence to effect a political agenda. In the court's view, those kinds of statements had a tendency to diminish the HCDFRS's standing with the public. The court was careful to note that its ruling doesn't mean a governmental employer will always prevail.
Turning to the second motion for summary judgment, the court found that since the HCDFRS had already corrected the possibly offensive language in the policies, there was no active issue for it to decide. It therefore agreed with the lower court's decision on mootness.
Lessons for employers
In light of this decision, all employers, in the public or private sector alike, should thoroughly review their social media policies. At a minimum, examine whether your social media policies might impermissibly restrict an employee's right to speak on a matter of public concern. Even though it upheld the lower court's decision, the 4th Circuit found that some of the language in Buker's first Facebook posts fell within the "matter of public concern" category, so it's wise to involve employment counsel in your policy review. Also, you should make sure your social media policies are up to date with guidance on protected activity in the workplace from the National Labor Relations Board (NLRB).
The nine factors outlined by the 4th Circuit provide an excellent template for conducting a First Amendment analysis. Ensuring that your policies are worded carefully and thoughtfully can help you limit your exposure to expensive lawsuits.
For more information on the BLR, click here. For more information on the South Carolina Employment Law Letter, click here.