Howard County Facebook and the First Amendment

Last month we covered a lawsuit filed on behalf of Howard County Battalion Chief Kevin Buker who was terminated over a series of Facebook posts on gun control last January. Yesterday, we reviewed a second suit by Mark Grutzmacher, a volunteer firefighter in Howard County, who was also terminated for his involvement in the same series of posts.

Both Buker and Grutzmacher are claiming that their posts were protected by the First Amendment, and that their discipline was unconstitutional. The details of their allegations have been amply covered in the previous posts, but to recap the bare essentials:

• Buker “posted” … “My aide had an outstanding idea …. Let’s kill someone with a liberal … then maybe we can get them outlawed too! Think of the satisfaction of beating a liberal with another liberal … its almost poetic….”
• Grutzmacher, responded to the post stating, “But … was it an ‘[assault] liberal’? Gotta pick a fat one, those are the ‘high capacity’ ones. Oh pick a black one, those are more ‘scary.’ Sorry had to perfect on a [sic] cool idea!”

It would be remiss of me if I did not present both sides of this difficult and important case. In an effort to consider the other side, let’s take a look at Howard County’s motion to dismiss Buker’s complaint. The essence of the motion is that:  

• Mr. Buker's Facebook Posts Are Nothing More Than Personal Opinions, Employee Grievances, And Insubordination That Bear No Resemblance To Speech Aimed At Informing The Public On Matters Of Importance
• Under Pickering, The Balance Weighs In Favor Of The Fire Department Because The Allegations In Mr. Buker's Complaint Are Sufficient To Demonstrate That His Facebook Posts Caused "Reasonable Apprehension" Of Harm To The Fire Department

At the heart of the County’s argument is the following:

• Far from provoking thoughtful debate on matters of importance to the electorate or reporting agency wrongdoing, the content, form, and context of the January 20 posts show that the exchange was nothing more than the cyberspace equivalent of making satirical jests at a social event attended by Mr. Buker's "selected or approved" guests.

The County cited a series of cases to support it’s position. Non-attorneys should keep in mind the quoted case summaries are the County’s interpretation of the cases, and by no means the agreed upon holding in each case. In fact the parties will likely debate each of the cases listed. However, for those interested in the social media – First Amendment landscape they provide an important foundation from which to study the issues:

• Pruitt v. Howard County Sheriff's Dep 't, 96 Md. App. 60, 623 A.2d 696, 701-702, cert. denied, 332 Md. 143, 630 A.2d 723 (1993) (deputy sheriffs parodying "Hogan's Heroes" by using Nazi salutes did not engage in speech that was a matter of public concern where the speech was for private amusement and "did not contain any allegations of wrongdoing or present issues of public concern to the community").
• Pereira v. Comm'r of Social Servs., 733 N.E.2d 112 (Mass. 2000) (social services investigator who made a vulgar, racist joke at a political event did not speak on a matter of public concern where the speech did not involve any commentary on a concern to the community and had "little in common with speech the Supreme Court… has determined to be of 'public concern' [and] little to link it to the central purpose of the First Amendment");
• Lalowski v. City of Des Plaines, 2012 WL5182764 (N.D. Ill. Oct. 18, 2012) (police officer who called abortion protestor a "fat cow" and used other insulting language did not speak on a matter of public concern, despite the fact that the comments were made at an abortion protest, when the speech devolved to "unrelated utterance of insults, banter, and vulgarity");
• Robinson v. Jones, 2006 WL 726673 (D. Conn. Mar. 20, 2006) (employee's placement of a political bumper sticker on a supervisor's car was a joke, and not for political advocacy, and thus was not a matter of public concern);
• Martinez v. Del Re, 2001 WL 1104639 (N.D. Ill. Sep. 18, 2001) ("wall of shame" lampooning deputy sheriffs about political patronage, dishonesty, sexual orientation, and illiteracy was "inside joke" not intended to bring public wrongdoing into light for purposes of entertainment, and thus was not a matter of public concern);
• Augustyn v. Jones, 2005 WL 1174837 (D. Or. Apr. 27, 2005) ("content, form, and context" of a vulgar joke where a public employee used his finger to emulate a penis while at a hotel bar during a work-related conference "clearly indicate that the matter is not one of public concern");
• In re O'Brien, 2013 WL 132508 (N.J. Super.AD. Jan. 11, 2013) (Facebook posts by teacher stating "I'm not a teacher – I'm a warden for future criminals" and "They had a scared straight program in school – why couldn't [I] bring [first] graders?" were personal comments that did not touch on a matter of public interest and thus did not involve matters of public concern).

Here is a copy of Howard County’s memorandum of law on the motion to dismiss that details their entire position: Howard County MTD Memorandum to Court

Here is Chief Buker’s response: Buker Response

Fascinating issues in a very difficult area of the law. Both sides are well represented – it looks to me like we have the makings of a Fire Law Superbowl on Social Media and the First Amendment!!!!

As a side note – another factor to keep in mind: neither the Buker nor Grutzmacher cases involve "concerted activities" allegations. Employees subject to collective bargaining laws have a whole different set of protections when they use social media that are in addition to the protections under the First Amendment. In many respects they are broader protections – in that they may offer protection to "petty grievances" and other matters that are not of public concern. However, they must be work related.