Fourth Circuit Rules on Howard County Fire Social Media Case

The US Fourth Circuit Court of Appeals has handed down an important decision on social media and the First Amendment, and in the process upheld the termination of Howard County Battalion Chief Kevin Buker over his social media postings.

The facts of the case are complicated and so is the legal ruling. I will do my best to distill it down to the bare bones of what firefighters need to know. In doing so, some of the more esoteric parts of the decision that may be of interest to the legal eagles will be glossed over – so legal eagles be forewarned. You will need to read the entire case to get all the issues.

Let’s start with the facts. Chief Buker made a Facebook posting on January 20, 2013 in response to news coverage on the gun-control debate. He was on duty at the time and posted on his personal Facebook page:

  • My aide had an outstanding idea . . lets all kill someone with a liberal . . . then maybe we can get them outlawed too! Think of the satisfaction of beating a liberal to death with another liberal . . . its almost poetic . . .

That post prompted a post by a second Howard County firefighter, Mark Grutzmacher, who responded:

  • But . . . . was it an “assult 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 cool idea!

Chief Buker “liked” Grutzmacher’s comment and replied, “Lmfao! Too cool Mark Grutzmacher!

The postings came to the department’s attention shortly thereafter, prompting Assistant Chief Jerome to advise Chief Buker to review his comments and remove anything that was inconsistent with the department’s social media policy. While Chief Buker did not believe his posts violated the policy, he removed them, and on January 23, 2013 posted:

  • To prevent future butthurt and comply with a directive from my supervisor, a recent post (meant entirley in jest) has been deleted. So has the complaining party. If I offend you, feel free to delete me. Or converse with me. I’m not scared or ashamed of my opinions or political leaning, or religion. I’m happy to discuss any of them with you. If you’re not man enough to do so, let me know, so I can delete you. That is all. Semper Fi! Carry On.

Beneath the post, someone posted “As long as it isn’t about the [Department], shouldn’t you be able to express your opinions?” to which Chief Ruker posted:

  • Unfortunately, not in the current political climate. Howard County, Maryland, and the Federal Government are all Liberal Democrat held at this point in time. Free speech only applies to the liberals, and then only if it is in line with the liberal socialist agenda. County Government recently published a Social media policy, which the Department then published it’s own. It is suitably vague enough that any post is likely to result in disciplinary action, up to and including termination of employment, to include this one. All it took was one liberal to complain . . . sad day. To lose the First Amendment rights I fought to ensure, unlike the WIDE majority of the Government I serve.

Three weeks later another firefighter posted a picture of an elderly woman with her middle finger raised. The photo included the statement: “THIS PAGE, YEAH THE ONE YOU’RE LOOKING AT IT’S MINE[.] I’LL POST WHATEVER THE FUCK I WANT[.]”

The firefighter added his own comment “for you Chief.” Chief Buker then “liked” the photograph.

Chief Buker was initially placed on administrative duty pending an investigation, and subsequently terminated on March 14, 2013. His notice of termination included an assortment of charges, four of which the 4th Circuit thought worthy of pointing out:

  • [Chief Buker a]dopted” and “approv[ed]” Grutzmacher’s comment, which “had racial overtones and was insensitive and derogatory in nature”;
  • Reflected a “[f]ailure to grasp the impact and implications of [the] comments” on Plaintiff’s “leadership position within the Department as a Battalion Chief,” in which Plaintiff was “responsible for enforcing Department policies and taking appropriate action for violations of those policies by the people [he] supervise[d]”;
  • Demonstrated “repeated insolence and insubordination” by replacing the January 20 post “with another posting tirade mocking the Chain-of-Command, the Department, and the County”; and
  • “[I]nterfered with Department operations” and caused “disruption [in] the Department’s Chain-of-Command and authority.”

Chief Buker along with Grutzmacher sued claiming the discipline was retaliation for exercising his First Amendment rights. The suit also alleged that the department’s social media policy was overbroad and therefore unconstitutional. We will not be discussing the overbroad aspect of the ruling.

The trial court ruled in the department’s favor prompting Chief Buker to appeal to the 4th Circuit. At the center of case is the applicability of the Pickering Balancing Test… a test created by the US Supreme Court in Pickering v. Board of Education, 391 U.S. 563 (1968) to evaluate whether public employee speech is entitled to First Amendment protection. Here is the simplest formulation of the Pickering Balancing Test I have ever seen:

  • For public employees to have protection under the First Amendment, they must be (1) speaking on a matter of public concern (2) as a private citizen, and they must prove their interest “in commenting upon matters of public concern” outweighs the “interests of the State, as an employer, in promoting the efficiency of the public services it performs through its employees”
[Sidebar: Have I mentioned how much I detest the Pickering Balancing Test… how it puts fire chiefs and firefighters in an impossible quandary when it comes to the real-life application of the First Amendment… and yet judges and law professors just don’t seem to get it…. they love the Pickering Balancing Test. They can Monday-morning quarterback the hell out of public employees AFTER THE FACT… The problem is it is impossible to incorporate the Pickering Balancing test into a workable social media policy without being unconstitutionally vague… but I digress…]

Let’s look at the 4th Circuit’s reasoning in their own words:

  • “The First Amendment ‘was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.’”
  • “Protection of the public interest in having debate on matters of public importance is at the heart of the First Amendment.”
  • To resolve Plaintiff’s appeal, we start by considering the First Amendment rights of public employees.
  • Public employees do not “relinquish First Amendment rights to comment on matters of public interest by virtue of government employment.” [LOL… every public employee First Amendment case says this…. LOL]
  • To that end, the Supreme Court has repeatedly “underscored the ‘considerable value’ of ‘encouraging, rather than inhibiting, speech by public employees. For government employees are often in the best position to know what ails the agencies for which they work.’”
  • “That being said, precedent makes clear that courts must also consider ‘the government’s countervailing interest in controlling the operation of its workplaces.’”
  • Just as there is a “public interest in having free and unhindered debate on matters of public importance,” … “[t]he efficient functioning of government offices is a paramount public interest” … Therefore, a public employee “by necessity must accept certain limitations on his or her freedom.”
  • In particular, under the balancing test developed by the Supreme Court … “the First Amendment does not protect public employees when their speech interests are outweighed by the government’s interest in providing efficient and effective services to the public.”
  • For several reasons, we conclude that the Department’s interest in efficiency and preventing disruption outweighed Plaintiff’s interest in speaking in the manner he did regarding gun control and the Department’s social media policy.
  • First, Plaintiff’s Facebook activity interfered with and impaired Department operations and discipline as well as working relationships within the Department.
  • “[F]ire companies have a strong interest in the promotion of camaraderie and efficiency” as well as “internal harmony [and] trust,” and therefore we accord “substantial weight” to a fire department’s interest in limiting dissension and discord.
  • Plaintiff’s Facebook activity led to “dissension in the [D]epartment” and resulted in “[n]umerous” conversations between at least one battalion chief and lower-level employees in which the battalion chief “had to[,] . . . as a supervisor[,] justify[] that it’s okay for anybody to say or do anything against the policy.”
  • Second, Plaintiff’s Facebook activity significantly conflicted with Plaintiff’s responsibilities as a battalion chief. Courts have long recognized that “[t]he expressive activities of a highly placed supervisory . . . employee will be more disruptive to the operation of the workplace than similar activity by a low level employee with little authority or discretion.”
  • Third, Plaintiff’s speech frustrated the Department’s public safety mission and threatened “community trust” in the Department, which is “vitally important” to its function.
  • “[T]he more the employee’s job requires . . . public contact, the greater the state’s interest in firing her for expression that offends her employer.”
  • Here, Plaintiff’s January 20 post, made while he was on-duty and in his office, “advocat[ed] violence to certain classes of people” and “advocated using violence to [e]ffect a political agenda.”
  • Additionally, the Department reasonably was concerned that Plaintiff’s Facebook activity—particularly his “like” of Grutzmacher’s comment regarding “black one[s]”—could be interpreted as supporting “racism” and “bias,” and thereby “interfere with the public trust of [Plaintiff] being able to make fair decisions for everybody,”
  • Fourth, Plaintiff’s speech—particularly his “like” of the image depicting a woman raising her middle finger—“expressly disrespect[ed] [his] superiors.”
  • A public employee’s interest in speaking on matters of public concern “does not require that [a public] employer tolerate associated behavior that [it] reasonably believed was disruptive and insubordinate.”
  • Employees within the Department viewed Plaintiff’s “like” of Donnelly’s Facebook picture of an older woman with her middle finger raised as a “sparring match between the battalion chief and an assistant chief [that publicly] escalated to the level of telling the fire chief to fuck off.”
  • Therefore, the disrespectful and insubordinate tone of Plaintiff’s relevant Facebook activity also weighs in the Department’s favor.
  • Lastly, we observe that the record is rife with observations of how Plaintiff’s Facebook activity, subsequent to Assistant Chief Jerome’s request that Plaintiff remove any offending posts, disregarded and upset the chain of command upon which the Department relies.
  • Fire departments operate as “paramilitary” organizations in which “discipline is demanded, and freedom must be correspondingly denied.” Accordingly, we afford fire departments “greater latitude . . . in dealing with dissension in their ranks.”
  • Although the Department’s status as a paramilitary organization is not dispositive of the Pickering analysis… it does further tip the scale in the Department’s favor.
  • By contrast, though we recognize that at least some of Plaintiff’s speech addressed matters of public concern—gun control and the Department’s Social Media Guidelines—the public’s interest in Plaintiff speaking on those matters of public concern does not outweigh the significant governmental interests set forth above.
  • In sum, we conclude the Department’s interest in workplace efficiency and preventing disruption outweighed the public interest commentary contained in Plaintiff’s Facebook activity.
  • In reaching this conclusion, we emphasize that this balancing test is a “particularized” inquiry. … Therefore, although we resolve the balancing test in favor of the Department, we expressly caution that a fire department’s interest in maintaining efficiency will not always outweigh the interests of an employee in speaking on matters of public concern.
  • In relevant part, the Code of Conduct prohibited Department personnel from “intentionally engag[ing] in conduct, through actions or words, which are disrespectful to, or that otherwise undermines the authority of, a supervisor or the chain of command” and “publicly criticiz[ing] or ridicul[ing] the Department or Howard County government or their policies.”

I reached out to my fellow firefighter-attorney, Ed Robson, of Robson & Robson, who represented Chief Buker, for his comments. Ed told me: “We are disappointed with the Court’s decision. This case raises a number of important issues for how members of the fire service express their political views on social media. We are still evaluating the Court’s opinion for appeal.”

The next stop for this case would be an appeal to the US Supreme Court. Stay tuned.

Here is a copy of the ruling: Grutzmacher v Howard County APPEAL

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
  • Giadon

    Curt,

    Did you also reach out to Howard County’s attorney, Ms. Peltzman? Curious if you just wanted to hear Robson’s side of the case?

    • CurtVarone

      Giadon

      Not sure what you are implying… but this is not the NY Times or the Washington Post (who BTW of late only seem to post one side of a story … one that aligns with their world view…). I am one person who does this in my spare time for free. I do not have a staff of folks to make these kinds of inquiries and I certainly do not have the time to do everything I would like to do, let alone what you think I ought to do. If you would like to volunteer to help me… you are hired. When can you start?

      Ed Robson is a personal friend of mine – a fellow colleague firefighter-attorney that I have known for years.

      I do not know Ms. Peltzman – and in my experience when I reach out to attorneys that I do not know to get a comment on a case – I normally do not even get the courtesy of a return phone call or email.

      If you know Ms. Peltzman and would be willing to have her post her comments here – or email them to me – or call me – I would be happy to include her comments. My contact info is provided here on the blog.

      I am sure the readers here at Fire Law would appreciate your efforts to provide a more balanced perspective.

  • Bill

    Curt,
    At what point is a government public employee considered to be a private citizen based on the Pickering balance test?

    • CurtVarone

      Bill

      You would think there would be a simple, straight forward answer to that questions. Unfortunately, there is not. It is part of the problem that I have with the Pickering Balancing test that SCOTUS, judges and law professors just don’t seem to comprehend. At the end of the day – if a judge thinks you were acting as a private citizen – you “may be” protected (assuming the other requirements of Pickering are met). That is of course unless an appellate court disagrees with him/her… in which case it will be up to the appellate court to decide… It goes on that way until you run out of appeals…

      • Bill

        Curt,
        Thank you for your quick reply. I appreciate you for keeping all of us informed on legal matters pertaining to the fire service. Especially when you volunteer your time to do so.

  • Douglas Winston

    I find the opinion wryly amusing, given that Court introduces the supposed issue of race, yet the same Court arguably ignored existing decisions when they upheld a ban on certain types of semi-automatic firearms. It’s amusing because the ban is based on external appearances rather than historical criminal use, intent or function, and most of them are in fact black (or very dark gray). The genre is often referred to as EBR’s, or Evil Black Rifles by sport shooters, and the Court’s intimation of a racial nature when the circumstances in the real world are not as they suggest clearly displays their lack of real knowledge in the subject of firearms. As for their accuracy with 1A and the workplace in this case? I guess SCOTUS will make that determination.
    Thanks for the update, and sorry for the hijack.

  • Michael

    When you play with fire, you are going to get burned. He was given a chance to be the bigger man and move forward. He dragged his feet like a child, cried, stomped and complained. If it would have been a professional or concrete statement not based on emotion he would likely have a job and retirement. This is what happens when you let arrogance guide your decisions. It is sad but even more sad he still wants to play the victim.

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