Employee’s ‘Shocking’ Facebook Posts on Racial Injustice May be Protected

Following a particularly divisive presidential election and in a year filled with extreme racial tensions, many people are flocking to social media as an outlet for their opinions. The platform allows them to voice opinions they may not otherwise vocalize in person. Public employers must be particularly mindful of how they respond to employees’ off-the-job social media posts. As the U.S. 6th Circuit Court of Appeals recently explained, a post’s shocking or offensive nature doesn’t necessarily remove it from the protections granted under the First Amendment. The following decision relates to public employers and not private employers.

Facts

Jamie Marquardt, a Cleveland (Ohio) Emergency Medical Services (EMS) captain, was fired after “incendiary” posts appeared on his Facebook account. The posts related to the death of Tamir Rice, a 12-year-old boy who was shot and killed by a Cleveland police officer while he was playing with a toy gun. The shooting made headlines and sparked nationwide protests.

Marquardt’s posts expressed satisfaction about Rice’s death, and the author lamented the fact that he himself “did not get the chance to kill [Rice].” The posts weren’t made during work hours. They were visible only to people Marquardt had added as “friends” and didn’t identify him as a public employee. He denied making the posts, claiming an acquaintance with access to his phone had created them.

Several EMS employees raised concerns about the posts. Marquardt’s employer, the city of Cleveland, eventually fired him, explaining his speech didn’t relate to a matter of “public concern.”

Marquardt sued Cleveland, claiming he was unlawfully terminated in retaliation for his protected speech in violation of the First and Fourteenth Amendments. The district court dismissed the case, holding the posts amounted to a private interest, not a public concern. The fired EMS worker appealed to the 6th Circuit.

6th Circuit’s Ruling

The 6th Circuit (which hears federal appeals arising from Kentucky, Michigan, Ohio, and Tennessee) reversed the district court on the sole issue of whether Marquardt’s Facebook posts were a matter of public concern. To assess whether a public employer impermissibly retaliated against an employee because of his speech, the court said the threshold question of whether he engaged in protected speech must be addressed. The inquiry involves a two-part test:

• The court must determine whether the speech was about a “matter of public concern” (if that’s the case, public employees are entitled to protection); and
• If the speech relates to a matter of public concern, the court must then balance the competing interests to determine if the employee’s free-speech rights “outweigh the efficiency interests of the government as an employer.”

The 6th Circuit focused on the first part of the inquiry and determined the posts on Marquardt’s Facebook page were a matter of public concern. The court explained speech involves a matter of public concern when it’s “fairly considered as relating to any matter of political, social, or other concern to the community.” Applying the standard to the fired EMS captain’s Facebook posts, the court pointed to the widespread local and national scrutiny surrounding Tamir Rice’s death. The court held the shooting’s high-profile nature made it a matter of public concern.

The shocking nature or inappropriate nature of the speech doesn’t affect the inquiry. The court acknowledged Marquardt’s posts—reflecting “the author’s [personal] desire to kill a twelve-year-old boy” and “joy that [Rice] is already dead”—might not seem public in nature. The first-person nature of the speech, however, didn’t morph the public concern into a “personal grievance.” The court explained: “[T]he First Amendment is not so fragile that its guarantees rise or fall with the pronouns a speaker selects.”

The fact Marquardt’s speech was communicated only to his Facebook friends and hidden from the general public didn’t affect the 6th Circuit’s analysis either. The court said speech doesn’t have to be communicated to the general public to be a matter of public concern. The court noted Facebook itself is a platform for sharing messages with a wide audience. Accordingly, posts made on the site (whether visible to the public or just to friends), are public in nature. Marquardt v. Carlton, No. 19-4223 (6th Cir., Aug. 19, 2020).

Bottom Line

Public employers should be mindful of how they respond to employees’ off-the-job comments. While the Marquardt decision has arisen from the 6th Circuit, which isn’t precedent for Wisconsin, it’s likely the 7th Circuit (which includes Wisconsin) would reach a similar result.

While the personal or offensive nature of an employee’s speech may seem reprehensible, the threshold inquiry is whether the communication relates to “a matter of public concern.” Before reprimanding or firing employees, public employers should consult with counsel to determine if the speech under scrutiny passes the threshold inquiry.

It’s important to note the 6th Circuit didn’t address the second part of the inquiry—whether Marquardt’s free-speech interests outweighed the employer’s interest in the efficient administration of its duties. On the issue, the court commented only that public employers “may regulate speech to a greater extent than it can that of private citizens.” The comment may provide some insight into how the court might view the facts of the case in light of the second part of the inquiry. That is, if the speech is so offensive that it prevents public employers from efficiently carrying out their duties, it would not be “protected speech,” regardless of its public nature.

Lastly, we should emphasize the 6th Circuit’s decision relates only to employees in the public sector. The First Amendment prohibits public employers from interfering with freedom of speech. While private-sector employees may have other remedies, the First Amendment doesn’t protect them from facing employment consequences for controversial speech.

This article, slightly modified to note recent updates, was featured online in the Wisconsin Employment Law Letter and published by BLR®—Business & Legal Resources. Reproduced here with the permission of BLR®—Business & Legal Resources.