A Louisiana firefighter who was terminated for referring to his fire district’s board of commissioners as “a board of clueless idiots” on Facebook, has lost an appeal to the Fifth Circuit Court of Appeals to get his job back.
Joseph Larry Moreau, Jr. was fired by St. Landry Fire Protection District No. 3 in 2018 after he replied to a Facebook post about a local teacher who was removed from a school board meeting by police. Moreau posted:
[A]ll of this going on with this poor teacher being treated so unfairly makes one thing perfectly clear. . . These “boards” everywhere, ruled by good old boy politics need to be dissolved ASAP..!! We have the same exact problem at our fire department . . . A board of clueless idiots making the decisions that affect many including the very employees that actually do the job.. It’s a joke . . [. . .]. I hope this teacher makes them pay…and pay big time.!!
After Moreau was terminated, he filed suit in US District Court for the Western District of Louisiana claiming that his termination was retaliation for protected speech. He also claimed his due process rights were violated and that his termination violated the Louisiana Firefighter Bill of Rights.
In a decision I criticized as being contrary to the way most courts would analyze the case, District Court concluded Moreau’s speech was of a private nature, and thus not subject to protection under the First Amendment. Here is my commentary.
In a decision that surprised me even more than the District Court ruling, the Fifth Circuit agreed that Moreau’s speech was primarily private speech, and not entitled the First Amendment protection. As explained in the ruling:
- To establish a First Amendment retaliation claim, Moreau must show that (1) he suffered an adverse employment action; (2) he spoke as a citizen on a matter of public concern; (3) his interest in speaking outweighed District 3’s interest in promoting efficiency; and (4) his speech motivated District 3’s adverse action against him.
- If Moreau did not speak on a matter of public concern, the inquiry ends.
- We determine whether a public employee’s speech relates to a matter of public concern by weighing the “content, form, and context of a given statement, as revealed by the whole record.”
- In “mixed” cases-those comments were “private” involving both private and public concerns-we determine whether the private concerns predominate.
- Weighing these factors, we conclude that Moreau’s Facebook post was predominately of private concern.
- First, although Moreau’s post addressed some matters of public concern-the Vermillion Parish School Board incident had garnered local media attention-his statement that his own employer’s Board is made up of “clueless idiots” is more “akin to an internal grievance,” and “convey[s] no information at all other than the fact that a single employee is upset with the status quo.”
- Second, the form of his speech (a public social media post) weighs in favor of a finding of public concern-it was accessible to the public outside of District 3’s chain of command.
- Third, however, the context of his speech weighs against a finding that Moreau spoke predominately on a matter of public concern.
- Speech “made solely in furtherance of a personal employer-employee dispute” isn’t public- and generally, “an employee speaks in furtherance of his personal employer-employee dispute when he discusses personnel matters directly impacting his job or criticizes other employees or supervisors’ job performance.”
- Moreau was admittedly angry with the Board for accusing him of refusing to participate in a fire training exercise, and for the way they treated him during the investigation and hearing.
- He made the Facebook post in the context of his private frustration with the Board’s management and decision-making, and a “personal problem” he had with its Chairman.
- Although Moreau began his Facebook post by commenting on a publicized school board incident, his speech “devolved” into his personal criticism of District 3’s Board.
- His statement was “primarily motivated by and primarily addressed [his] displeasure” with District 3’s Board and the way it operates.
- On balance, Moreau’s speech was predominately of private concern, and the district court did not err in granting summary judgment.
Here is a copy of the ruling.
Needless to say, I disagree with the Fifth Circuit’s reasoning for the reasons I stated in the earlier post. In fact, this ruling is an example of what concerns me the most about the Pickering Balancing test. My good friend Chip Comstock is the most knowledgeable legal scholar I know on First Amendment issues. Chip refers to the Pickering Balancing Test as a judicial “smell test” because the criteria are so nebulous that judges can find First Amendment protection for speech they support, or allow speech they do not support to be penalized as unprotected. That is not what the framers of our Constitution intended!
Just to review the Pickering Balancing Test, public employees have First Amendment protection when they speak:
- On a matter of public concern; and
- As a private citizen; and
- The employee’s right to free speech outweighs the employer’s interests in an efficient, disruptive-free workplace; and
- The Speech does not cause actual harm or disruption to the mission and function of the employer
Speech that is critical of elected officials is political speech. Political speech is a matter of public concern. It ought to be of concern to everyone when political speech can be silenced by those very elected officials who are being criticized. The fourth bullet point – whether the speech caused actual harm or disruption – should be the real focal point of judicial attention in cases where public employees may have gone too far in criticizing elected officials. A case like this should not be decided on the “matter of public concern” aspect.
I cannot help but wonder if the same federal judiciary that interpreted the term “individual with a disability” under the Americans With Disabilities Act so strictly that it excluded – as a matter of law – a person with one-arm (somehow concluding that a person with one arm does not have a disability), might exploit the vagueness inherent in the Pickering Balancing test to strip away public employee rights. Fortunately under the ADA, Congress intervened by redefining who qualifies as an individual with a disability – so the federal judges could not possibly get it wrong again. Unfortunately, Congress will not be able to help when it comes to the First Amendment.