In Marquardt v. City of North Cleveland, Ohio (6th Cir., No. 19-4223, 8/19/20), the plaintiff Jamie Marquardt, a captain in the Cleveland EMS, made incendiary comments on his private Facebook page regarding the death of Tamir Rice, a 12-year old who was shot and killed by Cleveland police while pointing a toy gun at people at a Cleveland recreation center. To put it mildly, the comments supported the actions of the officers in shooting Rice. The posts were not made during work hours, did not identify Marquardt as a City employee, and were taken down by Marquardt after a few hours. However, before the post was taken down, complaints regarding the post were filed with the City, and Marquardt was ultimately fired for violating the City’s social media policy. Marquardt sued under 42 U.S.C. 1983 and the district court granted summary judgment to the City.
The Sixth Circuit reversed on the threshold issue of whether the Facebook post addressed a matter of public concern. Looking at the private v. public distinction of the speech, the court held the content, form and context of the comment constituted a matter of public concern. On the issue of content, the court held the comment plausibly related to the police handling of the incident as justified – a matter of public concern and not a “personal beef”. On the issue of form, the court held that while the post was only visible to Marquardt’s friends, that was nevertheless a public audience. Finally, on the issue of context, the court noted there was no evidence that the post satisfied some personal interest of Marquardt, and was made in the context of intense public debate on the incident.