Appeals Court: City Employee's Horrific Facebook Posts About Tamir Rice Shooting Were Likely Protected Speech
from the just-because-it's-protected-doesn't-mean-it's-good dept
Just your periodic reminder that the First Amendment protects some pretty hideous speech. And it does so even when uttered by public servants. Caveats apply, but the Sixth Circuit Court of Appeals [PDF] has overturned a lower court dismissal of a Cleveland EMS captain, who made the following comment several months after Cleveland police officers killed 12-year-old Tamir Rice as he played with a toy gun in a local park.
Let me be the first on record to have the balls to say Tamir Rice should have been shot and I am glad he is dead. I wish I was in the park that day as he terrorized innocent patrons by pointing a gun at them walking around acting bad. I am upset I did not get the chance to kill the criminal fucker.
Former EMS Captain James Marquardt appears to be a pretty awful person. And he seems to espouse views very few people would support. But he's still allowed to do this, even as a city employee. Here are some of the caveats leading the Appeals Court to its conclusion:
The Facebook posts, all agree, did not identify Marquardt as a City employee, nor were they made during work hours. Nor would one likely dispute their controversial nature. The posts related to an incident that made local and national headlines: the shooting death of Tamir Rice.
Marquardt removed the post shortly after he -- or someone else (he claims someone with access to his phone made the post while he slept) -- made it but it was too late. His Facebook post became a hot conversational topic at the EMS unit and he was fired two weeks later for violating city policies with his rant about Tamir Rice.
Marquardt sued, claiming this was unlawful retaliation against his protected speech. The lower court declared the post did not deal with an issue of public concern, therefore it wasn't protected. The Appeals Court disagrees.
The ensuing posts on Marquardt’s Facebook page made certain assertions about the well-documented shooting that plausibly relate to the officers’ handling of the encounter and the resulting community reaction. In the posts, the author seems to assert that Rice’s shooting was justified because he was “terroriz[ing]” people by pointing a gun at them. The posts also assert that Rice, due to his conduct at the time of the killing, should not be viewed as a hero by Clevelanders. Given the widespread local and national scrutiny of the Rice shooting, these aspects of the posts directly relate to a “subject of general interest and of value and concern to the public.”
The First Amendment covers even the worst reactions to events of public interest. Marquardt's posts were incendiary and all-around horrific, but the court has seen worse and still found in favor of plaintiffs' First Amendment rights.
True, these details, which reflect (per the district court) “the author’s desire to kill a twelve-year-old boy,” as well as the author’s “joy that [Rice] is already dead,” might not strike one as matters of public concern. Yet these disturbing first-person sentiments do not, as a matter of law, alter the broader subject of the speech or transform it into a “personal grievance.” The First Amendment is not so fragile that its guarantees rise or fall with the pronouns a speaker selects. And expressions of opinion, even distasteful ones, do not become matters of personal interest simply because they are phrased in the first person or reflect a personal desire. See, e.g., Rankin, 483 U.S. at 381 (holding that an employee’s statement to a co-worker that, “if they go for him again, I hope they get him,” in reference to the assassination attempt on President Reagan, was speech on a matter of public concern).
[...]
In Snyder, the Supreme Court held that picketers at a military funeral were speaking on a matter of public concern by wielding signs saying “God Hates the USA/Thank God for 9/11,” “Thank God for IEDs” (or “improvised explosive devices,” often in the form of roadside bombs that would severely injure or kill soldiers), “God hates fags,” “You’re Going to Hell,” and “God Hates You.” Id. at 448. If those expressions—which arguably express glee at the death of a rank-and-file soldier— involve matters of public concern, so too does the speech here.
That doesn't exactly clear Marquardt for complete exoneration and reinstatement to his old position. The court only finds the speech is likely to be protected because it addressed issues of public concern and did not involve Marquardt presuming to speak for the city or the EMS unit that employed him. Marquardt's firing may still be justified. But the lower court was wrong to dismiss his lawsuit without further fact-finding.
Other than resolving the “public concern” question, our decision today is narrow. We do not decide any other aspect of Marquardt’s free speech claim, including whether the posts on his Facebook page amount to protected speech. In resolving this latter question, the district court will need to address whether Marquardt’s free speech interests outweigh the interest of the Cleveland EMS in the efficient administration of its duties. See Rorrer, 743 F.3d at 1047. On that issue, we note the well-settled rule that the government, when acting as an employer, may regulate employee speech to a greater extent than it can that of private citizens, including to discipline employees for speech the employer reasonably predicts will be disruptive.
There's some indication that Marquardt's posts affected his employer (the court mentions they were heavily-discussed by other EMS employees and many approached the EMS Commissioner with complaints about his comments) which will weigh against him when the district court takes another pass at this. And the EMS would certainly prefer its employees not express desires to kill children during their downtime. But that may not be enough to justify this firing. Public servants First Amendment rights are curtailed by their choice of profession, but they're not nonexistent.
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Filed Under: 1st amendment, cleveland ems, ems, free speech, james marquardt, tamir rice
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But…
I…buh…can someone make this make sense?
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The Narcissist's Prayer
I think he jumped from #4 to a whole new level of victim based on the fact the government isn't supposed to stop speech.
It does put the people of Cleveland into a bind as to how to get rid of this asshole. Is tarring and feathering too old-school of a way to show civic displeasure with a racist POS?
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Re:
I got $0.99 in my pocket.
Does that count?
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Re:
Being sacked by the government isn't censorship, as they are not stopping him saying horrific things. Being considered unfit for a job, especially one dealing with all sorts of people, is one of the consequences of horrific speech.
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How reassuring
Because if there's one type of person you want around when you're facing a medical emergency it's someone who has expressed the opinion that murdering children is fine because some people just deserve to die, that's the sort of person you can depend on to keep their biases at home and give it their all to help you out no matter who you are.
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Re: Standard attorney tactic
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Re:
Gotta love those desperation/stupidity fueled own-goals.
'I didn't say that! Also they are punishing me for what I said! What, no, those don't conflict at all.'
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Re: How reassuring
One wonders what wounded POWs thought, whether perhaps they imagined that a nurse's coworkers might put a stop to any abuse of the disfavored patient.
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It isn't so much that the government should regulate certain sorts of speech of employees, but that some beliefs, when exposed, show a direct probability of harm to the performance of duties.
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Brandenburg v. Ohio
Considering what I know about Brandenburg v. Ohio, I would indeed say that this is protected speech. Vile and horrendous speech, yes, but protected by the first amendment.
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So yeah... this is at best semi protected speech.
His statements go directly to his ability to perform his job. If this asshole had been in that park on duty he would have been obligated and required by the terms of his job to render assistance to Tamir Rice. And after that post I am fairly certain that not only would he not have rendered assistance but not done so gladly while making jokes on the scene.
His employer has no reason what so ever to expect him if put into a similar situation in the future to expect him to actually perform his job.
And that's the ball game. He may have the right to say it, but he's not absolved from the consequences of his speech just because his employer is a government agency.
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I have a question - might look provocative, but it is not, I am just trying to understand. How is this case, legally speaking, different from the police officers that were sacked discussing in their car a while ago some racial slurs? "I did not get the change to kill..." seems a pretty radical statement from a public employee. So why is this case different and he cannot be fired - because the comment was not made during working hours?
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Re:
That's about the line I would consider reasonable, yeah. It's one thing to hold a horrible opinion, but when that opinion has a direct relation to your job such that it's likely to negatively impact it that's when it becomes problematic.
As a hypothetical example if a cop put forth the opinion that black people are not just inferior but did not deserve equal protection under the law that would show a serious issue likely to impact their performance of the job, or in this case if someone was shot by a cop could you reasonably assume that the former EMS in this story would do their best to save that person, or would they be more likely to just half-ass it because the person had it coming?
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People are fired all the time from various private employers for posting far less offensive things online. It does seem sort of twisted that public employees have MORE rights when it comes to speech. I'm not sure if there's a good, fair way to handle it besides encourage everybody to get a government job from which they can never be let go for anything.
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Re:
"get a government job from which they can never be let go for anything."
Yeah, might as well go large - become da prez and pardon yourself - lol.
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Re: Brandenburg v. Ohio
The speech should be protected; their job should not. They shouldn't lose their job because they said something their managers disagreed with; they should lose their job because they said something contrary to the duties of their job and the oaths they took.
I am perfectly within my rights to say I believe that all mail should be public record. But if I say this and I'm a postal worker, that's grounds for, at a minimum, a job review.
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Re: Re: Being sacked by the government isn't censorship
The court here disagrees with you, AC.
As do I. When the government punishes you because of your speech, that's censorship.
Suppose they put him in prison, but let him write letters while in prison. Would you claim "isn't censorship, as they are not stopping him saying horrific things"?
I hope not.
Censorship has been popular for a long time, in many (most) places in history. That's not because it's a bad thing, it's because lots of people thought it was a good thing (as you seem to).
But after much consideration and debate, 18th century intellectuals decided that censorship did more harm than good. (That doesn't mean it doesn't do good.) Thus, the 1st amendment.
I understand their reasoning, and agree with them. Most people who haven't thought hard about it, don't.
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So, was the guy with the gun threatening to shoot (kill?) people or not? Whether the gun turned out to be real or not later on wasn't even an issue regarding any threats being made... that's a different matter. Things you can't tell just by looking.
All speech that is the expression of opinion is protected, or must be if any protection is to mean something.
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True: it is not even close to fair. But what are the alternatives?
The problem is, a private citizen (as employer or as servant) has rights that the government doesn't. And that is as it should be, and must be. BUT here the government IS the employer. As government, it has the responsibility, the REQUIREMENT that its agents/employees do NOT do things a government must not do; simultaneously, it does not have the right of a citizen-organization to expel members-associates for any cause.
Put these two together, and a government wage-slave has more rights than a private wage-slave, in addition to being backed by the power of the government. A balance-of-powers approach would legislatively deprive those workers of some of the rights of private workers; a social approach would try to keep the number of government wage-slaves as small as possible. (Then there's the socialist approach of making sure that bad apples cannot be weeded out, by making everyone a government wage-slave. That never turns out badly--if you like synchronized calisthenics while carrying deadly weapons.)
From a procedural perspective, this seems like an unresolvable conundrum to me. Of course, procedures (as the new TD post well says) cannot generate or guarantee "the weightier parts of the law" (you know, mercy, justice, and so on.)
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Re:
So why is this case different and he cannot be fired - because the comment was not made during working hours?
Exactly. The government can enforce reasonable standards of behavior while employees are "on the clock," the same way that any employer can require that employees refrain from insulting, harassing or otherwise acting to produce a hostile environment for coworkers/customers (though the government needs to be more careful to follow their internal policies than other employers, due process and all).
Though note that this ruling didn't say he could not be fired, only that the topic of his post was a matter of public interest. This raises the bar for the government, but they can still continue to argue that his words were sufficient to interfere in the reasonable administration of the duties of the organization.
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Re:
IANAL, but I see justification for tougher standards against police officers (or soldiers), empowered to use deadly force against the public, and other public servants without this special power.
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Re:
What 'guy with a gun'? The only one with a 'gun' mentioned in the article was the 12-year old kid, and if you want to know what happened check the link which will lead you to a previous article covering that an a police union's horrendous response. If you're not talking about them though I'm afraid I've no idea who you are talking about.
All speech that is the expression of opinion is protected, or must be if any protection is to mean something.
'Protected' does not, never has, and should not mean 'without consequences'. If someone has an opinion that relates to their job and indicates that they are likely to be incapable or unwilling to do that job as required then it's perfectly reasonable to ask them to leave to give them the boot depending on circumstances.
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Re: Re: Re: Being sacked by the government isn't censorship
So where exactly do you draw the line on government employees' speech, coz it sounds like you don't see a line at all. This guy has raised legitimate concerns about his fitness for the job. Care for life, no matter who's, is kinda the EMS's thing.
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Re: Re:
Why not tougher standards for medical personal who express views about wanting to kill someone?
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"I am upset I did not get the chance to kill the criminal fucker."
Well Mr James Marquardt, thanks for showing us why there are protests against the police around the country. Sick fuckers like you are the ones that need to be removed from the police force and have your right to own a gun stripped, since you admit to being only too happy to shoot children.
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If his speech shows a distinct issue with the potential performance of his duties — which is to say, it shows that he might refuse to treat certain kinds of people — but the government can’t punish him because of his speech, should the government have to wait until he refuses to treat someone (which might mean the difference between life and death for that someone) before it has the right to remove him?
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Re:
"So, was the guy with the gun threatening to shoot (kill?) people or not? "
If you mean Tamir Rice, you should probably read about the case rather than ask dumb questions that have been answered many times. The sad thing is, if the case wasn't named in the article, I'd have no idea which case you're talking about (see also: John Crawford III, who was shot for holding a BB gun that was on the shelves of the Wal Mart he was shopping in).
"Things you can't tell just by looking."
Indeed. Then, the answer to that is to respond to the 12 year old kid in a way that allows you to determine whether the gun was real, rather than opening fire on him, killing him before the car you're in has even stopped moving, or checking to see if the weapons is on the shelf next to the person before you fill them full of lead.
"All speech that is the expression of opinion is protected"
Unless that speech involves possession of toy, in which case prepare to die.
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Re: Re: Re: Being sacked by the government isn't censorship
"As do I. When the government punishes you because of your speech, that's censorship."
Well, yes. He shouldn't be put in prison, be deprived of any of his actual civil rights, but when it comes to holding a public job it's a different story. A public official who has on public record that they are happy a 12 year old child was murdered is someone who should not be paid by the public purse any more.
Speech is free to use, but will have consequences. It's that simple.
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Re: Re: Re: Re: Being sacked by the government isn't censorship
"He shouldn't be put in prison, be deprived of any of his actual civil rights, but when it comes to holding a public job it's a different story"
Or, to put it more bluntly, he should not be a position where he's able to deprive others of their rights if he's publicly announcing he will happily do that. A state EMS chief stating that he's happy for certain types of people to die needlessly should at least be investigated in case those opinions bleed over into his work, where he's in charge of emergency medical treatment of those same people. Free speech is an important right, but so is access to emergency medial care, and when the guy in charge of said care is saying that he wishes he could have killed someone, maybe he should not be in a position where he has the power to do exactly that.
"Speech is free to use, but will have consequences. It's that simple."
If only more people understood this.
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He should be grateful...
... that someone hasn't used his own logic against him and taken him out to prevent him murdering innocent children as he claims to want to do.
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Re: Re: Re: Re: Re: Being sacked by the government isn't censors
I'll reply to you since yours was the last comment - the other comments seem to agree with you.
Simply put, just because the guy says he's happy about the kid being killed doesn't mean he won't do his job.
Lots of jobs require people to do things they'd prefer not to.
As long as he does his job, he's entitled to whatever crazy opinions he likes. And to post them online. It wasn't a threat or statement that he'd refuse aid as an EMT.
If he were to refuse to do his job, of course that's another matter.
I think the court got this right.
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Re: Re: Re: Re: Re: Re: Being sacked by the government isn't cen
"Simply put, just because the guy says he's happy about the kid being killed doesn't mean he won't do his job."
But, he didn't say that. He said he wished he would have had a chance to kill the kid, and his job gives him exactly that power -a nd the only thing that seems top have triggered his hatred was that a 12 year old black boy was playing with a toy gun in a way he didn't like.
This is extremely disturbing, and I'm sorry that some people apparently need to wait till his racism causes him to do harm to another boy (assuming he hasn't already - I'd be willing to bet he had made some questionable decisions, he just didn't get caught. This stuff does not appear out of nowhere)
"I think the court got this right."
The decision doesn't exonerate him, it only questions the procedure followed by the lower court.
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Re:
Not so much that he cannot be fired, as that he cannot be fired based on the outrageous opinions expressed in the speech.
On remand, the defendants will have a chance to show that the speech was more than unpopular opinion. If they show that it reflects an unwillingness or inability to properly perform job duties, or that it is disruptive to the EMS work environment, then the sacking would still be deemed legitimate.
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Re: Re: Re: Re: Re: Re: Being sacked by the government isn't cen
"Simply put, just because the guy says he's happy about the kid being killed doesn't mean he won't do his job. "
We have here a man who is on public record saying he's happy that a 12 year old child was murdered because of bad behavior.
There is no place on this earth where that man would still hold a government job, and rightly so. If his judgment is impaired enough to applaud child murder in public then he's already disqualified as a job where accurate judgment is a core criteria.
Here, I'll ask the next question - assume that he was instead applauding statutory rape of 12 year olds or drug abuse of minors. Both of which are arguably on par with or less severe than applauding murder. Can you, hand on heart, defend his right to hold a public job paid for by public money?
"As long as he does his job, he's entitled to whatever crazy opinions he likes."
That has never been true. Ever. As a city employee he's even more beholden to a Code of Conduct than a private employee is. To say nothing about his specific job which calls for absolute impartiality as a core requirement.
"Job security over behavior or aptitude" is normally a purely leftist mindset and I'm surprised to see someone I held to be somewhat old-style conservative pull that one.
This is not an opinion over Apple vs Android, Left vs Right, or even a debate on racism vs equality. This is a city emergency medical technician stating, in public, that he's happy a child was murdered. It's so far beyond the pale I can hear Cleveland's HR guide of Do's-and-Don'ts shredding from a continent away.
"I think the court got this right."
So it did. The speech is protected. His job still isn't. I refer to you this line from the OP;
"...the EMS would certainly prefer its employees not express desires to kill children during their downtime."
That right there? That's where we see the valid reason for him being fired. If your boss wants you to quit, out you go. If your views become a cause for workplace disruption and personal tension then out you go. If your views are in direct conflict with your code of conduct and you express them so openly your workplace is affected by your private life, then out you go.
"Speech is free, but so are the consequences." This is how a free country must work.
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Re: Re: Re: Re: Re: Re: Re: Being sacked by the government isn't
Addendum:
...I'd add to this that I see no problem with him holding a job as government sanitation engineer or similar where a code of conduct may not be a core requirement.
Your job role always comes with a set of expected behaviors and responsibilities. If you can't fulfill the requirements of that job, you need to look for one with requirements you can fulfill.
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Re: Re:
"If they show that it reflects an unwillingness or inability to properly perform job duties, or that it is disruptive to the EMS work environment, then the sacking would still be deemed legitimate."
From the OP;
"...There's some indication that Marquardt's posts affected his employer (the court mentions they were heavily-discussed by other EMS employees and many approached the EMS Commissioner with complaints about his comments)..."
I fail to see how it could not reasonably affect the emergency Medical Service work environment when one employee expresses glee, approbation and joy at the murder of a child.
You could also make a solid case that expressed opinion, expressed in affect, will - humans being human - bleed over in work directly related to that opinion.
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Re: Re: Brandenburg v. Ohio
"But if I say this and I'm a postal worker, that's grounds for, at a minimum, a job review."
Or imagine a state judge or DA saying something similar. Their feet wouldn't hit the ground on their way out.
I'd argue the impartiality of an emergency responder whose job includes triage would have requirements of similar stringency.
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Re:
"So yeah... this is at best semi protected speech. "
Oh, no. His speech is protected - but as you note, his job is not. A soldier, judge, DA, police officer, etc, saying anything similar would lose that job as the job description in itself includes impartiality as a core requirement.
Essentially his opinion puts a wrecking ball through his job qualification. He needs to find a job which has qualifications he can fulfill instead.
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