Howard County Facebook Discipline Case Headed to US Supreme Court

Howard County Battalion Chief Kevin Buker is appealing the ruling of the 4^th Circuit Court of Appeals up to the United States Supreme Court. Chief Buker was terminated in 2013 following a series of Facebook posts relating to the gun-control debate.

The termination prompted Chief Buker to file a lawsuit in federal court challenging the discipline based on the First Amendment. Both the trial court and the 4^th Circuit upheld the termination, concluding that the county’s interests in managing its workplace outweighed Chief Buker’s right to free speech based on the Pickering Balancing Test.

The appeal to the US Supreme Court is via a mechanism known as a Petition for a Writ of Certiorari. For the non-attorneys, a Writ of Certiorari is a request made by a litigant who lost a case in a lower court, asking the Supreme Court to grant a review the ruling. It is a discretionary proceeding in so far as the Court need not accept the case for review.

The denial of a Writ of Certiorari does not mean the Supreme Court believes the case was rightly decided. Rather, meritorious cases may be denied Certiorari simply because the court can only accept a limited number of cases each year. Often the Court will grant the writ because different Circuit Courts have conflicting opinions on matters of significance, and the Court wants to clarify the law. If Certiorari is granted, the appeal will be heard.

One of the nice things about a Petition for a Writ of Certiorari is that the issues must be narrowly focused in the initial petition. In Chief Buker’s case, three key issues have been identified:

1. Whether the Pickering balancing is a pure question of law, as the Fourth Circuit holds, or a mixed question of law and fact, as every other circuit considering the issue holds.
2. Whether the Pickering balancing requires a trial court to submit factual disputes to a jury, as the Second and Eighth Circuits hold, or whether the Pickering balancing gives a trial court discretion on whether to submit factual disputes to a jury, as the Tenth and Eleventh Circuits hold.
3. Whether the Fourth Circuit’s interpretation of the Pickering balancing violates the procedural due process and free speech rights of government employees by depriving them of the ability to confront and cross examine witnesses when facts are in dispute.

Here is a copy of the petition: Petition for Writ_Buker v. Howard County

Kudos to fellow firefighter-attorney Ed Robson for his work in this case.

As a reminder, the Pickering Balancing Test was established in Pickering v. Board of Education, 391 U.S. 563 (1968) to evaluate whether public employee speech is entitled to First Amendment protection.

The simplest formulation of the Pickering Balancing Test I have ever seen is as follows:

• For public employees to have protection under the First Amendment, they must be (1) speaking on a matter of public concern (2) as a private citizen, and they must prove their interest “in commenting upon matters of public concern” outweighs the “interests of the State, as an employer, in promoting the efficiency of the public services it performs through its employees”

If I could add a fourth issue to Chief Buker’s petition it would be:

4. Should the Pickering Balancing Test be replaced by a more workable legal framework that would be AT LEAST clear enough so as to be capable of passing muster under the 14^th Amendment’s Due Process requirement that laws not be vague.

The current Pickering framework makes it nearly impossible for public employees to predict in real time whether their comments in social media will be outweighed by their employers’ interests.

At the same time, public employers are restricted in the policy language they can use and training they can provide to public employees relative to social media due to concerns about crossing line into becoming a unconstitutional prior restraint of their employees First Amendment rights.

It’s the worst of both worlds for public employers and public employees, and for what ever the reason judges and law professors just don’t seem to recognize the problem. To them I would suggest the following: Try drafting a social media policy and training program for public employees that does not constitute a prior restraint and that explains to public employees when they can and cannot exercise their First Amendment Rights. Sounds simple. Try it. But remember:

• the United States Supreme Court has held that [government] cannot forbid or require the doing of an act “in terms so vague that men of common intelligence must necessarily guess as to its meaning and differ as to its application.” … Due process requires a person to have notice of conduct that is prohibited.