Why it matters
Can a paramedic be legally terminated for social media activity? Yes, the U.S. Court of Appeals for the Fourth Circuit has ruled, affirming summary judgment for the county that employed him. After some negative incidents involving social media, Howard County’s Department of Fire and Rescue Services promulgated a social media policy and issued a code of conduct. A battalion chief later posted on social media after watching a news segment on gun control, while on duty: “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.” The employee also engaged in other social media activity, including liking a response to his post that added “pick a black one, those are more ‘scary.’” as well as a post that questioned the chain of command at the station. After being fired for violating the social media policy and code of conduct, the battalion chief sued alleging that his First Amendment rights were violated. Although at least some of his activity touched on issues of public concern, the employer’s interest in workplace efficiency and preventing disruption outweighed the public interest commentary contained in his social media activity, the panel concluded.
Kevin Buker began his employment as a paramedic with Maryland’s Howard County Department of Fire and Rescue Services in 1997 and in 2012, he was promoted to the rank of battalion chief. The department had experienced some problems with employee use of social media and in response, drafted a policy and guidelines that prohibited personnel “from posting or publishing any statements, endorsements, or other speech, information, images or personnel matters that could reasonably be interpreted to represent or undermine the views or positions of the Department, Howard County, or officials acting on behalf of the Department or County.”
The department’s code of conduct further banned conduct or words that “are disrespectful to” or undermined the authority of the chain of command as well as public criticism of the department, county, or its policies.
In 2013, Buker was on duty and watching news coverage of a gun control debate, which prompted him to write a social media post: “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.” A few minutes later, another paramedic with the county replied with the comment: “But… was it an ‘assault liberal’? Gotta pick a fat one, those are the ‘high capacity’ ones. Oh … pick a black one, those are more ‘scary.’ Sorry had to perfect on a cool idea!” Buker liked the comment and replied, “Lmfao! Too cool!”
When the post was brought to the attention of the department chiefs, Buker was asked to review his social media activity and remove anything inconsistent with department policy. Though he maintained he was in compliance with all policies, Buker removed the post.
But he then added a new post: “To prevent future butthurt and comply with a directive from my supervisor, a recent post (meant entirely in jest) has been deleted. So has the complaining party. If I offend you, feel free to delete me. Or converse with me. I’m not scared or ashamed of my opinions or political leaning, or religion. I’m happy to discuss any of them with you.” In response to a comment on this post from a friend, Buker wrote, “Free speech only applies to the liberals, and then only if it is in line with the liberal socialist agenda.”
The department began an investigation to determine if Buker violated the social media policy and code of conduct. While that was ongoing, another member of the department posted a picture of an elderly woman with her middle finger raised with the caption, “THIS PAGE, YEAH THE ONE YOU’RE LOOKING AT IT’S MINE[.] I’LL POST WHATEVER THE F*** I WANT[.]” Above the image, the user wrote, “for you Chief.” Buker liked the image.
Buker was terminated based on his social media activity and he filed suit in response, alleging that he was retaliated against for exercising his First Amendment rights. A district court judge granted summary judgment in favor of Howard County and the U.S. Court of Appeals for the Fourth Circuit affirmed.
Applying a balancing test, the panel found the government’s interest in providing efficient and effective services to the public outweighed protecting the speech interests of Buker. His social media posts and likes did address some matters of public concern, the court acknowledged, as his initial post was allegedly a commentary on gun control legislation and his later comment was meant to reflect his concerns about First Amendment rights.
“Because the public has an interest in receiving the ‘informed’ opinions of public employees, it necessarily also has an interest in information about policies that circumscribe public employees’ speech and public employees’ opinions of such policies,” the court wrote. “However, we also acknowledge that some of the [social media] activity prompting plaintiff’s termination did not implicate matters of public concern,” such as Buker’s like of the image of the elderly woman raising her middle finger, which amounted to no more than an employee grievance.
With at least some of the plaintiff’s speech addressing matters of public concern, the court turned to whether Buker’s interest in speaking outweighed the department’s interests. “For several reasons, we conclude that the Department’s interest in efficiency and preventing disruption outweighed Plaintiff’s interest in speaking in the manner he did regarding gun control and the Department’s social media policy,” the panel wrote.
Buker’s social media activity interfered with and impaired department operations and discipline as well as working relationships within the department. For example, multiple African American employees complained to the county about the racial overtones of the “black” comment and several employees spoke out about how it seemed acceptable for battalion chiefs such as the plaintiff to violate the department policies.
In addition, Buker’s social media activity “significantly conflicted” with his responsibilities as a battalion chief, as his “actions led to concerns regarding Plaintiff’s fitness as a supervisor and role model, and concerns that Plaintiff’s subordinates would not take him seriously if Plaintiff tried to discipline them in the future.” His speech also frustrated the department’s public safety mission and threatened “community trust,” the court added, particularly in light of his post advocating for using violence to effect a political agenda.
Some of Buker’s speech expressly disrespected his superiors (such as his like of the elderly woman image) and the record was “rife with observations” of how the plaintiff’s social media activity upset the chain of command in the department. “In sum, we conclude the Department’s interest in workplace efficiency and preventing disruption outweighed the public interest commentary contained in Plaintiff’s social media activity,” the court concluded.
To read the opinion in Buker v. Howard County, click here.