The US Court of Appeals for the Eighth Circuit has reinstated a First Amendment lawsuit filed by a former Arkansas firefighter who was fired in 2020 over an image he reposted on Facebook. Steven Melton was terminated by Forrest City Mayor Cedric Williams, who found the image undermined the city’s ability to deliver public safety services to the public.

The Eighth Circuit explained the facts as follows:

• Steven Melton is a pro-life, evangelical Christian. In June 2020, he reposted a black-and-white image on Facebook that depicted a silhouette of a baby in the womb with a rope around its neck. His intent was to convey that he was “anti-abortion.”
• Others did not view the image the same way. Two weeks after he posted it, a retired fire-department supervisor complained to Melton that he thought it looked like a noose around the neck of a black child.
• It upset him because the caption of the image, “I can’t breathe!,” was associated with the protests surrounding George Floyd’s death. Melton agreed to delete it immediately.
• Deleting it was not enough for Mayor Cedric Williams, who called him into his office the next day.
• Although Melton was “apologetic,” the mayor placed him on administrative leave pending an investigation. After a single day reviewing Melton’s Facebook page and discussing the post with the current fire chief, two retired firefighters, several attorneys, and a human-resources officer, the mayor decided to fire Melton over the image’s “egregious nature.”
• He was concerned about the “huge firestorm” it had created. Among other things, the fire chief’s phone had been “blowing up,” “several” police officers had become “very upset,” and the “phone lines” were jammed with calls from angry city-council members and citizens.
• Some said that Melton “should not be a part of the… fire department responding to calls.”
• A few even said that they did not want “him coming to their house… for a medical call or fire emergency.”
• According to the mayor, these complaints “threaten[ed] the City’s ability to administer public services.”
• Melton found out about the decision to fire him from the local news. In response to a “media request,” Mayor Williams had issued a press release stating that “[q]uestionable social[-]media posts” had led to his termination.
• It marked the end of his “four and a half years” of “unblemished” service.
• After a grievance failed to get Melton his job back, he brought a First Amendment retaliation claim against Mayor Williams in both his individual and official capacities. \ He also included one against Forrest City for what he alleged was an unwritten policy granting city officials unbridled discretion to censor employee speech.

The trial court granted summary judgment to the city, prompting Melton to appeal to the Eighth Circuit. The Eighth Circuit reversed, concluding the matter should be left to a jury. Quoting from the decision (with citations and quotation marks removed to facilitate reading):

• As a general matter the First Amendment prohibits government officials from subjecting an individual to retaliatory actions for engaging in protected speech.
• Public employees must, according to the Supreme Court, accept certain limitations on their freedom, because the government has valid interests as an employer in regulating their speech.
• Recognizing, however, that they do not surrender all their First Amendment rights by reason of their employment the Court has staked out a middle ground.
• Known as Pickering balancing, it requires weighing the government’s interest in promoting the efficiency of the public services it performs through its employees against the employee’s interest in commenting upon matters of public concern.
• Courts weigh these interests on a post hoc basis, long after the speech and the alleged retaliation have come and gone. It is no easy task.
• Getting there even involves addressing a couple of threshold issues, one for each side. For Melton, he can bring a claim for retaliation only if he was speaking as a citizen on a matter of public concern.
• Then the focus shifts to the government employer to establish that the speech created workplace disharmony, impeded Melton’s performance… impaired working relationships, or otherwise had an adverse impact on the efficiency of the fire department’s operations.
• Only if both are true will we do a full Pickering balancing and weigh these interests against each other
• Melton posted the image to his personal page on his own time, and there is no dispute that race and abortion are matters of political, social, or other concern to the community.
• The record is more of a tossup on whether there was a negative impact on Forrest City’s delivery of public services.
• Sometimes a government employer will experience an actual disruption. Other times, it will have a reasonable belief in the potential for disruption.
• Either is usually enough when the government entity is a public-safety organization.
• At best, the evidence of disruption is thin. As the district court pointed out, everyone agrees that there was no disruption of training at the fire department, or of any fire service calls, because of the post or the controversy surrounding it.
• Instead, Mayor Williams argues that the firestorm itself is what disrupted the work environment.
• The problem is that there was no showing that Melton’s post had an impact on the fire department itself. No current firefighter complained or confronted him about it. Nor did any co-worker or supervisor refuse to work with him.
• Granting summary judgment based on such vague and conclusory concerns, without more, runs the risk of constitutionalizing a heckler’s veto.
• What the district court should not have done was automatically give the mayor’s belief considerable judicial deference.
• As one of our cases puts it, we have never granted any deference to a government supervisor’s bald assertions of harm based on conclusory hearsay and rank speculation.
• The jury’s role will be to resolve these factual disputes through special interrogatories or special verdict forms.
• We accordingly reverse the grant of summary judgment on the First Amendment retaliation claims against Mayor Williams and Forrest City.

Here is a copy of the decision: