Dive Brief:
- A Forrest City, Arkansas, firefighter who lost his job because he posted a “provocative,” anti-abortion image on his personal Facebook page will get to bring his First Amendment retaliation claim to a jury, the 8th U.S. Circuit Court of Appeals held Aug. 13 in Melton v. City of Forrest City, Arkansas.
- The firefighter is an anti-abortion, evangelical Christian, according to court documents. After he posted the image in June 2020, he heard from a retired supervisor, who was upset. The supervisor said the image looked like a noose around the neck of a Black child, and its caption, “I can’t breathe!,” was associated with the protests then surrounding George Floyd’s death.
- Although the firefighter removed the post, the mayor fired him following complaints from city council members, citizens and police officers. Because there was no evidence the post had an impact on current fire department operations, a jury would have to decide if the mayor’s stated concerns about future impact were reasonable, or if he terminated the firefighter because he disagreed with the viewpoint in the image, the 8th Circuit said.
Dive Insight:
This is at least the second federal appeals court ruling in two months dealing with a public employee’s controversial online speech. The cases highlight the difficult balancing test courts must undertake to determine if a public employer’s response to the speech violated the employee’s First Amendment rights.
The general rule is that the First Amendment protects statements expressing a viewpoint on a moral or political issue, regardless of whether others find it offensive, the 8th Circuit said.
However, according to U.S. Supreme Court rulings, the First Amendment limits a public employee’s speech when the government has a valid interest in regulating what’s said, the appeals panel explained.
To balance these competing concerns, courts look to see whether the government’s interest “in promoting the efficiency of … public services” outweighs the public employee’s interest in commenting as a private citizen on a matter of public concern.
In the firefighter’s case, the record was clear he was acting as a private citizen on matters of public concern, the 8th Circuit noted. He posted the image to his personal Facebook page on his own time, and there was no dispute that race and abortion are matters of “political, social, or other concern to the community,” the panel said.
But the city had a problem carrying its end of the balancing test — establishing that the post had a negative impact on the delivery of firefighter services, the court found.
In particular, the city failed to show the post disrupted the fire department itself: None of the firefighter’s current colleagues complained or confronted him about the post, and no one refused to work with him, the 8th Circuit noted.
The mayor argued the alleged public “firestorm” over the post was disruptive and that “conveying racist messages” would affect trust between firefighters.
Even if that could happen, given the lack of any actual disruption to the fire department, the mayor’s predictions were vague and speculative, and the district court should not have granted summary judgment to the city based on them, the 8th Circuit held.
In contrast, in July, the 11th Circuit upheld a decision by Miami-Dade County, Florida, to fire a media aide after he wrote an opinion piece for an online newsletter using inflammatory language to describe LGBTQ+ people. The court found his speech impaired relationships among co-workers and led to so many calls it hindered day-to-day operations.