Kevin Buker was a battalion chief with the Howard County, Maryland Department of Fire and Rescue Services. In 2011, the Department developed a social media policy, in part in response to a racially-tinged Facebook post from a volunteer firefighter. The Policy prohibits employees “from posting or publishing statements, opinions or information that might reasonably be interpreted as discriminatory, harassing, defamatory, racially or ethnically derogatory, or sexually violent 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.”
On January 20, 2013, Buker was watching news coverage of a gun control debate in his office and posted the following statement to his Facebook page while on duty: “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…”
Twenty minutes later, Mark Grutzmacher, a volunteer paramedic, replied to Buker’s post with the following comment: “But…was it an ‘assault 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, Buker “liked” Grutzmacher’s comment and replied, “Lmfao! Too cool Mark Grutzmacher!”
Two Department employees subsequently forwarded Buker’s and Grutzmacher’s Facebook posts to another battalion chief within the Department, and an investigation resulted. Later that day, the County emailed Buker, directing him to review his recent Facebook posts and to remove anything inconsistent with the Department’s social media policy.
On January 23 – a few hours after Buker informed the County that he had removed the posts – Buker posted the following to his Facebook wall: “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. Or converse with me. I’m not scared or ashamed of my opinions or political leaning, or religion. I’m happy to discuss any of them with you. If you’re not man enough to do so, let me know, so I can delete you. That is all. Semper Fi! Carry On.”
One of Buker’s Facebook friends then replied, “As long as it isn’t about the Department, shouldn’t you be able to express your opinions?” Buker responded: “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 Governement recently published a social media policy, which the Department then published its 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 Ammendment rights I fought to ensure, unlike the WIDE majority of the Government I serve.”
Three weeks later, Mike Donnelly, a member of a Department-affiliated volunteer company, posted to his own Facebook page a picture of an elderly woman with her middle finger raised. Overlaid across the picture was the following caption: “THIS PAGE, YEAH THE ONE YOU’RE LOOKING AT IT’S MINE[.] I’LL POST WHATEVER THE FUCK I WANT[.]” Above the picture, Donnelly wrote, “for you, Chief.” Buker, who was one of Donnelly’s Facebook friends, “liked” the photograph.
When the County fired him, Buker filed a free speech lawsuit, claiming his termination violated his First Amendment rights. The federal Fourth Circuit Court of Appeals disagreed, and upheld his termination.
The Court commented that “for several reasons, we conclude that the Department’s interest in efficiency and preventing disruption outweighed Buker’s interest in speaking in the manner he did regarding gun control and the Department’s social media policy. First, Buker’s Facebook activity interfered with and impaired Department operations and discipline as well as working relationships within the Department. Fire companies have a strong interest in the promotion of camaraderie and efficiency as well as internal harmony and trust, and therefore we accord substantial weight to a fire department’s interest in limiting dissension and discord.
“Here, Buker’s Facebook activity led to dissension in the Department and resulted in numerous conversations between at least one battalion chief and lower-level employees. Three African-American employees within the Department approached the president of the Phoenix Sentinels – the Howard County affiliate of the International Association of Black Professional Firefighters – about the posts, with one member stating, ‘I don’t want to work for Buker anymore. I don’t trust him.’
“Second, Buker’s Facebook activity significantly conflicted with Buker’s responsibilities as a battalion chief. Courts have long recognized that the expressive activities of a highly placed supervisory…employee will be more disruptive to the operation of the workplace than similar activity by a low level employee with little authority or discretion. The record demonstrates that Buker’s actions led to concerns regarding Buker’s fitness as a supervisor and role model, and concerns that Buker’s subordinates would not take him seriously if Buker tried to discipline them in the future. By flouting Department policies he was expected to enforce, Buker violated the trust his inferiors have in him to be in his administrative role as a battalion chief, because people count on him to be fair.”
Grutzmacher v. Buker, 2017 WL 1049473 (4th Cir. 2017).