Appeals Court: City Employee's Horrific Facebook Posts About Tamir Rice Shooting Were Likely Protected Speech
from the just-because-it's-protected-doesn't-mean-it's-good dept
Just your periodic reminder that the First Amendment protects some pretty hideous speech. And it does so even when uttered by public servants. Caveats apply, but the Sixth Circuit Court of Appeals [PDF] has overturned a lower court dismissal of a Cleveland EMS captain, who made the following comment several months after Cleveland police officers killed 12-year-old Tamir Rice as he played with a toy gun in a local park.
Let me be the first on record to have the balls to say Tamir Rice should have been shot and I am glad he is dead. I wish I was in the park that day as he terrorized innocent patrons by pointing a gun at them walking around acting bad. I am upset I did not get the chance to kill the criminal fucker.
Former EMS Captain James Marquardt appears to be a pretty awful person. And he seems to espouse views very few people would support. But he’s still allowed to do this, even as a city employee. Here are some of the caveats leading the Appeals Court to its conclusion:
The Facebook posts, all agree, did not identify Marquardt as a City employee, nor were they made during work hours. Nor would one likely dispute their controversial nature. The posts related to an incident that made local and national headlines: the shooting death of Tamir Rice.
Marquardt removed the post shortly after he — or someone else (he claims someone with access to his phone made the post while he slept) — made it but it was too late. His Facebook post became a hot conversational topic at the EMS unit and he was fired two weeks later for violating city policies with his rant about Tamir Rice.
Marquardt sued, claiming this was unlawful retaliation against his protected speech. The lower court declared the post did not deal with an issue of public concern, therefore it wasn’t protected. The Appeals Court disagrees.
The ensuing posts on Marquardt’s Facebook page made certain assertions about the well-documented shooting that plausibly relate to the officers’ handling of the encounter and the resulting community reaction. In the posts, the author seems to assert that Rice’s shooting was justified because he was “terroriz[ing]” people by pointing a gun at them. The posts also assert that Rice, due to his conduct at the time of the killing, should not be viewed as a hero by Clevelanders. Given the widespread local and national scrutiny of the Rice shooting, these aspects of the posts directly relate to a “subject of general interest and of value and concern to the public.”
The First Amendment covers even the worst reactions to events of public interest. Marquardt’s posts were incendiary and all-around horrific, but the court has seen worse and still found in favor of plaintiffs’ First Amendment rights.
True, these details, which reflect (per the district court) “the author’s desire to kill a twelve-year-old boy,” as well as the author’s “joy that [Rice] is already dead,” might not strike one as matters of public concern. Yet these disturbing first-person sentiments do not, as a matter of law, alter the broader subject of the speech or transform it into a “personal grievance.” The First Amendment is not so fragile that its guarantees rise or fall with the pronouns a speaker selects. And expressions of opinion, even distasteful ones, do not become matters of personal interest simply because they are phrased in the first person or reflect a personal desire. See, e.g., Rankin, 483 U.S. at 381 (holding that an employee’s statement to a co-worker that, “if they go for him again, I hope they get him,” in reference to the assassination attempt on President Reagan, was speech on a matter of public concern).
In Snyder, the Supreme Court held that picketers at a military funeral were speaking on a matter of public concern by wielding signs saying “God Hates the USA/Thank God for 9/11,” “Thank God for IEDs” (or “improvised explosive devices,” often in the form of roadside bombs that would severely injure or kill soldiers), “God hates fags,” “You’re Going to Hell,” and “God Hates You.” Id. at 448. If those expressions—which arguably express glee at the death of a rank-and-file soldier— involve matters of public concern, so too does the speech here.
That doesn’t exactly clear Marquardt for complete exoneration and reinstatement to his old position. The court only finds the speech is likely to be protected because it addressed issues of public concern and did not involve Marquardt presuming to speak for the city or the EMS unit that employed him. Marquardt’s firing may still be justified. But the lower court was wrong to dismiss his lawsuit without further fact-finding.
Other than resolving the “public concern” question, our decision today is narrow. We do not decide any other aspect of Marquardt’s free speech claim, including whether the posts on his Facebook page amount to protected speech. In resolving this latter question, the district court will need to address whether Marquardt’s free speech interests outweigh the interest of the Cleveland EMS in the efficient administration of its duties. See Rorrer, 743 F.3d at 1047. On that issue, we note the well-settled rule that the government, when acting as an employer, may regulate employee speech to a greater extent than it can that of private citizens, including to discipline employees for speech the employer reasonably predicts will be disruptive.
There’s some indication that Marquardt’s posts affected his employer (the court mentions they were heavily-discussed by other EMS employees and many approached the EMS Commissioner with complaints about his comments) which will weigh against him when the district court takes another pass at this. And the EMS would certainly prefer its employees not express desires to kill children during their downtime. But that may not be enough to justify this firing. Public servants First Amendment rights are curtailed by their choice of profession, but they’re not nonexistent.