EMS Captain’s Facebook Post May Be Constitutionally Protected

EMS Captain’s Facebook Post May Be Constitutionally Protected

Written on 09/29/2020
Will Aitchison

Jamie Marquardt was a captain with City of Cleveland’s Department of Emergency Medical Services. Marquardt had a “private” Facebook page which did not identify him as a City employee.

A little more than a year after a Cleveland police officer shot and killed 12-year-old Tamir Rice, a post appeared on Marquardt’s Facebook page: “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.”

Someone by the name of Kevin, apparently one of Marquardt’s cousins, posted a comment in reply. A second post then appeared on Marquardt’s page: “Stop Kevin. How would you feel if you were walking in the park and some ghetto rat pointed a gun in your face. Would you look to him as a hero? Cleveland sees this felony hood rat as a hero …”

Marquardt removed the posts within hours and later claimed an acquaintance with access to his phone made the posts while he slept. The posts quickly became a subject of discussion among Marquardt’s EMS colleagues. After various EMS employees expressed concern over the content of the posts, EMS Commissioner Nicole Carlton cited the posts in a complaint filed with the City of Cleveland.

When the City fired Marquardt, he sued, claiming he was terminated by the City in retaliation for his protected speech in violation of the First Amendment. Concluding that the posts amounted to speech on a matter of private interest and not of public concern, a trial court granted summary judgment to the City. Marquardt challenged the decision in the federal Sixth Circuit Court of Appeals.

The Court reinstated Marquardt’s lawsuit. The Court began with a restatement of the rules applicable to public employee free speech lawsuits: “To assess whether a public employer impermissibly retaliated against an employee for his speech, we ask three questions: one, whether the employee engaged in protected speech; two, whether the action taken against the employee would discourage an individual of ordinary firmness from engaging in the activity that led to his discipline; and three, whether the employee’s protected speech was a motivating factor behind the adverse action taken against the employee.”

The Court noted that “part one of this two-part inquiry is the lone issue before us. The City concedes that Marquardt’s Facebook post was not made pursuant to his employment, but instead as a private citizen. And the parties have not briefed, nor did the trial court pass upon, how to balance the interests of Marquardt and the Cleveland EMS, his former employer.

“The speech on Marquardt’s Facebook page addressed a matter of public concern. To resolve the public/private distinction, we look to the content, form, and context of a given statement, as revealed by the whole record. And in undertaking that analysis, we set aside the shocking and no doubt painful aspects of Marquardt’s comments. For whether speech is shocking or inappropriate is irrelevant to whether it concerns a public matter.

“The 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 ‘terrorizing’ 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.

“Of course, the posts in question said a good deal more. Intermixed with profanity and racially insensitive language was an expression of pleasure at Rice’s death. The poster even lamented the fact that he was not the one to kill Rice. True, these details 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.”

The Appeals Court remanded the lawsuit to the trial court for trial.

Marquardt v. Carlton, 2020 WL 4811388 (6th Cir. 2020).

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