By Wayne D. Garris Jr., J.D.
Fourteen months after the shooting death of 12-year-old Tamir Rice, a post appeared on the employee’s Facebook page stating that “Tamir Rice should have been shot and I am glad he is dead.”
The Sixth Circuit reversed and remanded a district court’s order granting summary judgment against the First Amendment retaliation claims of a Cleveland EMS captain who was terminated after he allegedly made incendiary posts on his Facebook page regarding the shooting of Tamir Rice by Cleveland police officers. The appeals court disagreed with the lower court’s finding that the captain’s posts did not address a matter of public concern, noting that the incident made national news. Although the posts included the author’s personal opinions on the shooting, which the employer found disturbing, they referred to a subject of general interest and were posted in a widely viewable forum. Because its decision was limited to the question of whether the speech addressed a matter of public concern, the court remanded to the court below to determine whether the speech was protected by the First Amendment (Marquardt v. Carlton, August 19, 2020, Readler, C.).
The employee was a captain with Cleveland EMS. Fourteen months after the shooting death of 12-year-old Tamir Rice by a Cleveland police officer, a post appeared on the employee’s Facebook page. The post stated that “Tamir Rice should have been shot and I am glad he is dead,” called Rice “a ghetto rat,” and said, “I am upset that I did not get the chance to kill” him. The employee removed the posts from his page several hours later and claimed that a friend made the posts while he was asleep. The employer terminated the employee two weeks later for violating its social media policies.
Lawsuit. Alleging retaliation for his protected speech in violation of the First and Fourteenth Amendments, the employee filed suit under Section 1983. The district court granted summary judgment for the employer concluding that the posts amounted to speech on a matter of private interest, not of public concern, and later denied the employee’s motion to alter or amend the judgment. The employee appealed.
Speech based retaliation. At issue on appeal was whether the employee’s posts addressed a matter of public concern. After examining the “content, form, and context” of the posts, the court concluded that while “shocking” and “painful,” they did address a matter of public concern.
Content. The posts were written in response to a fatal police shooting that set off “a fierce public debate over whether the officers’ actions were justified, a debate that only intensified when, not long before the posts on [the employee’s] Facebook page, a grand jury declined to indict the officer who shot Rice.” Further, the posts expressed opinions about the officers’ handling of the encounter and the community’s response.
While the district court found that the statements involved a private concern because the author expressed his “desire to kill a 12-year-old boy” and his “joy” that Rice was dead, the appeals court explained that under the law, the author’s expression of his personal sentiments did not transform his speech into a personal grievance. At the time the posts were made, 14 months after the incident, Rice had become a familiar name to the public, thus the subject of the posts addressed a matter of public concern.
Form. Further, that the speech was made via a Facebook post on the employee’s page weighed in favor of finding it was a matter of public concern. The purpose of Facebook, and other social media, is to allow individuals to share options with a wide audience. The court also cited the Supreme Court’s decision in Packingham v. North Carolina, in which social media is called the “modern public square.”
Context. The employee asserted that the posts were made by an acquaintance who stayed at his home. He also deleted the posts, and any comments, as soon as he saw them. The court acknowledged that due to this lack of information, it did not know “what prompted the posts, nor do we know the substance of the reply to the initial post, other than to believe that the reply apparently disagreed with the initial post about Rice.”
Nevertheless, the court concluded that the known context gave no indication that the speech concerned a primarily private matter. No matter the context, the substance of the posts involved an incident that “generated intense public debate and quickly became a matter of public discussion.”
Employer’s response. The employer argued that it only terminated the employee for the part of his post expressing regret that the author did not kill Rice himself. The court rejected this argument, however, noting that in its answer to the employee’s complaint, the employer admitted that it terminated the employee for both posts in their entirety.
Narrow decision. The court clarified that its decision did nothing more than clarify the public concern issue and did not resolve whether the posts were protected speech. On remand, the district court would need to examine whether the employee’s free speech interests outweigh the employer’s interest in the efficient administration of its duties.
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