Fourth Circuit: No First Amendment Protection for Fire Battallion Chief's Disruptive Facebook Posts

Steven D. Schwinn, John Marshall Law School

The Fourth Circuit today dismissed a fire department battalion chief's First Amendment retaliation claim for his Facebook activity in violation of the Department's Social Media and Code of Conduct policies. The court also dismissed his facial challenge against the policies as moot.

The case arose when Howard County (Maryland) Fire and Rescue Services Battalion Chief Kevin Patrick Buker posted a series of statements and "likes" on his Facebook page. On January 20, 2013, Buker posted this while on duty (sics omitted):

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 . . .

He then "liked" a colleague's post that added ugly racial comments to this.

The assistant chief directed Buker to remove the posts pursuant to the Department's Social Media Policy. That Policy, relatively new at the time, prohibited employees from posting anything that "might reasonably be interpreted as discriminatory, harassing, defamatory, racially or ethnically derogatory, or sexually violent when such statements, opinions or information, may place the Department in disrepute or negatively impact the ability of the Department in carrying out its mission."

Buker removed the posts, but then posted comments criticizing the Social Media Policy and the "liberals" who were behind it. The Department moved Buker out of field operations and into an administrative assignment and began an investigation.

About three weeks later, another colleague posted to his own Facebook page a picture of an elderly woman with her middle finger raised, with a caption saying that he'll post whatever he wants, and a note stating, "for you Chief." Buker "liked" it.

Shortly after that, Buker was fired for violating the Social Media Policy and the Code of Conduct. (The Code of Conduct banned "conduct unbecoming," that is, "any conduct that reflects poorly on an individual member, the Department, or County government, or that is detrimental to the public trust in the Department or that impairs the operation and efficiency of the Department.")

Buker sued, arguing that the Department fired him in retaliation for his speech, and that the Social Media Policy and Code of Conduct Policy were facially unconstitutional. The Fourth Circuit disagreed.

Applying Pickering, the court held that two of Buker's posts (the one about assaulting liberals, and the one criticizing the Social Media Policy) addressed matters of public concern. (The court assumed, without deciding, that Buker's Facebook activity constituted a "single expression of speech.") But the court said that the Department's interest in efficiency and preventing disruption outweighed Buker's interests:

• Buker's Facebook activity "interfered with an impaired Department operations and discipline as well as working relationships within the Department.
• The posts "significantly conflicted with [his] responsibilities as battalion chief," including "acting as an impartial decisionmaker and 'enforcing Departmental policies and taking appropriate action for violations of those policies.'"
• Buker's "speech frustrated the Department's public safety mission and threatened 'community trust' in the Department, which is 'vitally important' to its function."
• Buker's activity "expressly disrespect[ed] [his] superiors" after he had been reprimanded.
• The posts "disregarded and upset the chain of command."

The court dismissed Buker's facial challenge to the Social Media Guidelines and Code of Conduct as moot. The court said that although the Department changed the policies to eliminate the earlier version's prohibitions on the private use of social media, the Chief and defendants' counsel both promised the court that the Department wouldn't re-implement the old guidelines (so as to make this a "voluntary cessation" case).