Here is another tale of social media posts and “likes” getting an employee into hot water. Again, the culprit is Facebook. In Grutzmacher, et al. v. Howard County, et al., No. 15-2066, (4th Cir. March 20, 2017), the plaintiffs were a former Howard County, Maryland, Battalion Chief with the Maryland Department of Fire and Rescue Services (“Department”), and a County volunteer paramedic. While the Court’s opinion sets forth the offending posts and likes, suffice it to say that they concern liberals and guns. Additionally, one was perceived with a racial undertone, and another was considered insubordinate. The Department terminated the Battalion Chief after investigation.
The trial court granted summary judgment for the Department on the retaliation claim, finding that the Facebook activity was unprotected speech as it (1) interfered with the Department’s operations and, (2) the Battalion Chief was not speaking on a matter of public concern. Thus, the termination did not implicate Constitutional concerns.
The Fourth Circuit reviewed the statements and disagreed with the lower court – somewhat. The Court noted the three-part test for retaliation in response to First Amendment speech: (a) the public employee was speaking on a matter of public concern, as opposed to a matter of personal interest; (b) his or her interest in speaking outweighed the government’s interest in efficient operations; and (c) the speech was a substantial factor in the termination. Noting that some of the Battalion Chief’s speech addressed a matter of public concern (gun control), while some did not (liking an image of a woman raising her middle finger), the Court ultimately concluded that the Department’s interest in efficiency and preventing disruption outweighed the Battalion Chief’s right to speak on these issues in the manner he did.
Government employees do not lose their right to free speech by virtue of working for the government. Indeed, their right to comment on matters of public interest is heightened. Courts will, however, grant paramilitary organizations, such a fire or police department, more leeway to quash dissension in their ranks than typical governmental workplaces.