A Volusia County beach patrol officer’s vulgar and derogatory Facebook post and text messages—made the day after a jury acquitted George Zimmerman in the shooting death of Trayvon Martin, an African-American teenager—were not protected speech, ruled the Eleventh Circuit in an unpublished opinion. Finding that the county’s interests in regulating his speech outweighed the officer’s in making the statements, the appeals court affirmed summary judgment against his Section 1983 claim he was wrongfully terminated for exercising his First Amendment free speech right (Snipes v. Volusia County, August 21, 2017, per curiam).
Shortly before the officer was fired, the beach patrol was caught up in a public scandal involving adult employees and underage females, which negatively affected its reputation in the community. Although the officer was not involved, he was aware of the scandal’s impact on the patrol, including the implementation of a zero tolerance policy for any actions that would further tarnish its reputation.
Facebook post and texts. Around that same time, George Zimmerman was being tried in a neighboring county for the shooting death of Trayvon Martin. When the jury acquitted him, rallies protesting the verdict broke out in Volusia County. The day after the verdict was announced, the officer posted on his Facebook page: “Another thug gone! Pull up your pants and act respectful. Bye bye thug rip!” He also initiated a group text message, to which he sent a picture of Paula Deen with the caption “Y’all ni**as want some pie?” When one of the group members responded with a picture of Martin and the caption “Those skittles were to die for,” the officer texted “lol.” He also responded “LOL nice!” to a picture of the Zimmerman jury with Paula Dean’s head superimposed on their bodies.
Although he was not on duty when he made the Facebook post, he was on duty when he sent the texts to, among others, three current employees. The texts were reported to the employee’s supervisor and an internal affairs investigator, and copies of the texts and post were also provided to a local newspaper, which published their content.
Termination upheld. After the officer’s subsequent termination, a review board recommended imposing a lesser punishment but the county manager upheld his termination. The officer then sued and on cross motion for summary judgment, the district court denied his motion and granted the county’s.
Balancing test. Assuming arguendo the officer was speaking as a citizen on a matter of public concern, the appeals court turned to the second step of the Pickering balancing test—weighing his First Amendment interests against the county’s interest in regulating his speech. In striking that balance, the court considered (1) whether the speech at issue impeded the county’s ability to perform its duties efficiently; (2) the manner, time and place of the speech; and (3) the context within which the speech was made.
County’s ability to efficiently perform duties. The officer argued that the county did not receive any complaints or demands that he be fired and that no protest rallies were held. Noting however, that it needed to show only a reasonable possibility that such disruptions would occur, the court pointed to the county manager’s suggestion that investigating and terminating the officer allowed the county to move on without disruption. This was supported by the local NAACP president’s statement that “the County’s swift action in investigating and dismissing [the officer] was proper and timely and avoided any further reaction from our branch.” In addition, the president of a black clergy alliance testified that if the officer had not been fired, “I certainly think that we would have probably moved forward with some sort of either demonstration or action” and that “[t]he action would have been in the form of a protest rally.”
He also testified that, with regard to the beach patrol’s ongoing efforts to recruit members of the African-American community, “I think there would have been some real concerns on their part about . . . applying for position[s] with the [B]each [P]atrol after something like this had come to light.” Noting further the NCAAP president’s statement that the officer’s texts and Facebook messages “make you wonder if a black person is out in the ocean drowning, if [Beach Patrol officers] would turn their head or if they would take their time to help rescue them,” the court pointed out that this “is precisely the type of public confidence which we have traditionally viewed as a compelling government interest.”
In short, said the court, had the county had not terminated the officer it was reasonably possible that there would have been substantial protests and rallies in the community, that the beach patrol’s ability to recruit new members from the African-American community would have been hindered, and that the public’s confidence in the patrol—and perhaps all county law enforcement—would have been adversely affected.
Time, place, and manner. As to the time, place, and manner of the officer’s speech, the court noted that he sent the texts while on duty to three other employees, one of whom was a direct subordinate and another of whom was on duty at the time he received the texts. And while his Facebook post was made while he was off duty, it was not a “private” message. Turning to the offensive manner of his speech, the court explained that “even assuming—we think, rather generously—that [his] comments were intended to communicate something of value to the public discourse, there are many ways to communicate ones’ thoughts, and the vulgar, derogatory phrases” he used weighed against him.
Context. Finally, the court observed, the messages were disseminated at a time when racial tensions were already running high in the area. Moreover, the officer was aware that racial tensions were already high, that the beach patrol’s image had been severely damaged by its prior scandal, and that public trust in the county was already low. Against this backdrop, he made comments he knew were likely to further inflame tensions, to further hurt the patrol’s image, and to further erode trust with members of the public, said the court, finding that all three factors clearly favored the county.
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