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Posted by Dan Herbert Uncategorized

The Howard County Maryland Department of Fire and Rescue Services has developed a social media policy that prohibits employees from “posting or publishing statements, opinions or information that might reasonably be interpreted as discriminatory, harassing, defamatory, racially or ethnically derogatory when such statements, opinions, or information may place the Department in disrepute or negatively impact the ability of the Department in carrying out its mission.”

In January 2013, Kevin Buker, a battalion chief with the Department, was watching a gun control debate on cable news when 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.” Two Department employees forwarded the Facebook post to another battalion chief and an investigation resulted. The Department instructed Buker to review the post and remove any language inconsistent with Department social media policy. Following this direction, Buker posted the following on his Facebook, “To prevent butthurt and comply with a directive from my supervisor, a recent post has been deleted. So has the complaining party. If I offend you, feel free to delete me…” and he continued that he would like to engage in debate on Facebook and that he is not ashamed of his opinions. Buker went on to state that the local and federal governments are all Liberal Democrat and that free speech only applies to liberals and that he fought to ensure First Amendment rights and those rights were being lost.

Buker was subsequently fired and he then filed a free speech lawsuit claiming that his First Amendment rights were violated. The Fourth Circuit Court of Appeals disagreed with Buker and upheld his termination. The Court stated that the Department has legitimate interest in efficiency and preventing internal disruption and that interest outweighed Buker’s interest in speaking in the manner he did. The Court believed that his Facebook activity interfered with Department operations, and that the Department has a strong interest in limiting dissension and discord. Buker’s Facebook post led to dissension in the Department and it significantly conflicted with his responsibilities as a battalion chief. There were now concerns regarding Buker’s fitness as a supervisor and that subordinates would no longer take him seriously.

Grutzmacher v. Buker, 2017 WL 1049473 (4th Cir. 2017)

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