MARK GRUTZMACHER v. HOWARD COUNTY
US Court of Appeals for the Fourth Circuit, Wynn, March 20, 2017,
First Amendment- A Facebook “like” constitutes endorsement of a comment and is considered First Amendment speech

Facts
Buker was a Howard County Fire Dept. Battalion Chief. In 2013, while at work, he posted on Facebook:
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 . . .
Grutzmacher, a paramedic, then replied:
But . . . . was it an “assult 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!
Six minutes later, Plaintiff “liked” Grutzmacher’s comment and replied, “Lmfao! Too cool Mark Grutzmacher!”
Other members of the fire department took issue with the comments and reported them to the HoCo Fire Department.
Over the course of the next few weeks, other comments were then made related to the dispute.
Buker took down the original post and posted about it, saying in part:
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…
In reply to a question a friend asked regarding whether he should be able to express his opinions without the Fire Department getting involved, Buker wrote:
Unfortunately, not in the current political climate. Howard County, Maryland, and the Federal Government are all Liberal Democrat held at this point in time. Free speech only applies to the liberals, and then only if it is in line with the liberal socialist agenda. County Government recently published a Social media policy, which the Department then published it’s own. It is suitably vague enough that any post is likely to result in disciplinary action, up to and including termination of employment, to include this one. All it took was one liberal to complain . . . sad day. To lose the First Amendment rights I fought to ensure, unlike the WIDE majority of the Government I serve.
Other comments Buker posted on Facebook were not as political. For example, he “liked” a picture posted by a friend of an elderly woman with her middle finger raised captioned “for you Chief.”
Buker was charged by the Department, which claimed that his Facebook posts improperly:
• “[A]dopted” and “approv[ed]” Grutzmacher’s comment, which “had racial overtones and was insensitive and derogatory in nature”
• Reflected a “[f]ailure to grasp the impact and implications of [the] comments” on Buker’s “leadership position within the Department as a Battalion Chief,” in which Buker was “responsible for enforcing Department policies and taking appropriate action for violations of those policies by the people [he] supervise[d]”;
• Demonstrated “repeated insolence and insubordination” by replacing the January 20 post “with another posting tirade mocking the Chain-of-Command, the Department, and the County”; and
• “[I]nterfered with Department operations” and caused “disruption [in] the Department’s Chain-of-Command and authority.”
Buker was fired following his meeting with the Chief regarding the charges.
Buker filed suit to challenge his termination as well as challenge the HoCo Fire Department Social Media Policy. After the suit, the department got rid of the old policy and adopted a new one.
Law from the Case
Held: Buker’s termination was upheld. The Court supported the County’s claim that the perceived violent and racial overtones of the speech undermined public confidence in the department and caused disruption. As a public employee, this was held to outweigh Buker’s right to speak freely.
1st Amendment – Public employees do not “relinquish First Amendment rights to comment on matters of public interest by virtue of government employment.”
1st Amendment – Public employees “are often the members of the community who are likely to have informed opinions as to the operations of their public employers, operations which are of substantial concern to the public. Were they not able to speak on these matters, the community would be deprived of informed opinions on important public issues.”
1st Amendment – Limitations – The First Amendment does not protect public employees when their speech interests are outweighed by the government’s interest in providing efficient and effective services to the public.
1st Amendment – Limitations – This is particularly true in “paramilitary” organizations such as police and fire departments.
1st Amendment Test- To determine whether a government employee’s First Amendment rights were violated, a court will consider:
• Was the employee’s speech a substantial factor in causing the disciplinary action? If not, there is no violation
• Was the speech as a citizen or an employee? The First Amendment does not protect speech made pursuant to a government employee’s official duties
• Was the speech about a matter of public concern? Or personal “complaints over internal office affairs”? The greater the public interest, the more protection
• If the speech was made as a citizen and addressed a matter of public concern, the court balances the interest of the employee in speaking freely with the interest of the government in providing efficient services.
First Amendment- Public Concern – Speech involves a matter of public concern when it involves an issue of social, political, or other interest to a community
First Amendment – Private Concern – Private concerns are less protected and include personal grievances, allegations of favoritism, employment rumors, and “other complaints of interpersonal discord.”
From the case: The Court looked at Buker’s comments and decided that some of them were matters of public concern. For example, commentary about “liberals” and “assault liberals” was considered commentary on gun-control legislation. And commentary about the department’s Social Media Guidelines was considered a debate over the First Amendment.
On the other hand, items such as the “like” of the elderly woman with her middle finger raised was considered a personal concern.
1st Amendment – Whether an employee’s interest in speaking outweighs the government’s interest is a question of law for the court.
1st Amendment – Weighing Government interest in limiting employee speech includes considering whether the speech:
(1) impaired the maintenance of discipline by supervisors;
(2) impaired harmony among coworkers;
(3) damaged close personal relationships;
(4) impeded the performance of the public employee’s duties;
(5) interfered with the operation of the institution;
(6) undermined the mission of the institution;
(7) was communicated to the public or to coworkers in private;
(8) conflicted with the responsibilities of the employee within the institution; and
(9) abused the authority and public accountability that the employee’s role entailed.
1st Amendment – Government Interest – To demonstrate that an employee’s speech impaired efficiency, a government employer only needs to show that an adverse effect was “reasonably to be apprehended.”
1st Amendment – Supervisor Speech – A supervisor’s speech “will be more disruptive to the operation of the workplace than similar activity by a low level employee with little authority or discretion.”
1st Amendment – Social Media – Social media amplifies the distribution of the speaker’s message—which favors the employee’s free speech interests—but also increases the potential, in some cases exponentially, for departmental disruption, thereby favoring the employer’s interest in efficiency.
Dismissal – Mootness – A claim can be considered “moot” when it is “absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.’”
From the case: Because the Chief of the HoCo Fire Department submitted a sworn statement that he “fully intend[s] to operate under the 29 newly issued [policies] and do[es] not intend to re-issue the original versions,” there was no need to consider whether the old policy violated the 1st Amendment.