Employee’s ‘shocking’ Facebook posts on racial injustice may be protected

Ahead of a particularly divisive presidential election and in a year filled with extreme racial tensions, many people are flocking to social media as an outlet for their opinions. The platform allows them to voice opinions they may not otherwise vocalize in person. Public employers must be particularly mindful of how they respond to employees’ off-the-job social media posts. As the U.S. 6th Circuit Court of Appeals recently explained, a post’s shocking or offensive nature doesn’t necessarily remove it from the protections granted under the First Amendment. The following decision relates to public employers and not private employers.

Facts

Jamie Marquardt, a Cleveland (Ohio) Emergency Medical Services (EMS) captain, was fired after “incendiary” posts appeared on his Facebook account. The posts related to the death of Tamir Rice, a 12-year-old boy who was shot and killed by a Cleveland police officer while he was playing with a toy gun. The shooting made headlines and sparked nationwide protests.

Marquardt’s posts expressed satisfaction about Rice’s death, and the author lamented the fact that he himself “did not get the chance to kill [Rice].” The posts weren’t made during work hours. They were visible only to people Marquardt had added as “friends” and didn’t identify him as a public employee. He denied making the posts, claiming an acquaintance with access to his phone had created them.

Several EMS employees raised concerns about the posts. Marquardt’s employer, the city of Cleveland, eventually fired him, explaining his speech didn’t relate to a matter of “public concern.”