Claim Over Firing for Kirk-Assassination-Related Post Can Go Forward, Court Rules

From McVeigh v. Kelly, decided last week by Chief Judge Allen Winsor (M.D. Fla.):

The facts come from the complaint, and at this stage I accept all well-pleaded factual allegations as true.

McVeigh worked for the Department as a financial administrator. Shortly after Charlie Kirk’s assassination, McVeigh posted a photograph of Kirk on his private Instagram account with the caption, “At least this racist just didn’t get a nicked ear. Where were all the good guys with guns though? THOUGHTS AND PRAYERS. LET’S NOT MAKE THIS POLITICAL etc.” Only McVeigh’s friends could access the private Instagram account, which did not identify McVeigh or his employer.

McVeigh also changed his Facebook photo to a graphic that read, “Not the American government asking us not to wish death on people.” This photo was not private and was visible to any Internet user. But like the initial Instagram post, this Facebook account did not identify the Department as McVeigh’s employer.

At some point, an acquaintance texted McVeigh about the posts, accusing McVeigh of “wishing death” on “individuals who shared Kirk’s beliefs.” After reflection, McVeigh edited his post “to remove one sentence for tone.”

On September 15—five days after the assassination—McVeigh received a termination letter from HR. The HR officer told him it had “[s]omething to do with Charlie Kirk … a post you made or something like that.” A few days later, McVeigh discovered an Instagram account showing his Facebook photo, Instagram post, and LinkedIn profile. The post also included a copy of a communication sent to the Department about McVeigh’s posts. (McVeigh believes the acquaintance reported his posts to the Department.) …

To succeed on his [First Amendment] claim, McVeigh must show (1) that his posts were made as a private citizen and “involved a matter of public concern”; (2) that his “free speech interests outweighed the employer’s interest in effective and efficient fulfillment of its responsibilities [i.e., the Pickering v. Bd. of Ed. (1968) balance]”; and (3) that his posts caused his termination.

While the Department says it does not concede any element, it focuses solely on the second one—the Pickering balancing. Because the Department advances no argument as to the first or third elements, I will assume McVeigh has pleaded enough to satisfy them. The question, then, is whether McVeigh alleged sufficient facts that could plausibly survive Pickering balancing.

“The Pickering test seeks to arrive at a balance between the employee’s interest in commenting on matters of public concern and his employer’s interest in efficiently providing public services.” In balancing these interests, courts consider “(1) whether the speech at issue impedes the government’s ability to perform its duties efficiently, (2) the manner, time and place of the speech, and (3) the context within which the speech was made.”

The Pickering balancing can be fact intensive, and in many cases cannot be resolved at the motion-to-dismiss stage. Still, a plaintiff must allege sufficient facts to allow the court to draw the inference that he could survive the balancing. Here, drawing all reasonable inferences in McVeigh’s favor, I conclude he has alleged enough.

The Department cites its “legitimate interest in avoiding disruption,” and suggests McVeigh’s posts were disruptive. But McVeigh has alleged a complete lack of disruption. The Department calls this a boilerplate allegation, but McVeigh offers more than that. See [First Amended Complaint] (“Not one person within Defendant said anything to Plaintiff about his post prior to minutes before he was fired Plaintiff actually worked the entire weekend after the posts with no one saying anything about the posts and there was not one comment, criticism or other indication that there was a problem with the posts until he was terminated.”).

As to context, the Department points to “the realities of political and workplace violence that permeate the nation.” It also points to McVeigh’s choice to post his views on social media, which can reach wide audiences.

But at this stage, where I must draw all reasonable inferences in McVeigh’s favor, I cannot conclude McVeigh was advocating for workplace violence or threatening coworkers (or anyone). And I cannot conclude that the fact that social media was involved necessarily weighs in the Department’s favor on the balancing. McVeigh alleges that neither post referenced his employment and that one was private and did not use his real name. At this stage, I cannot assume otherwise. Nor can I assume the posts were widely viewed, even if they were on social media….

[T]he complaint’s allegations [do not] show[] the speech was “an impediment to the effectiveness of the” government entity…. McVeigh has not alleged a public-facing role; he works in the budget department. Nor has he alleged any role where an “appearance of bias” on a particular issue (or specifically relating to Charlie Kirk) would be important. Cf. Shahar v. Bowers (11th Cir. 1997) (stating that an employer’s “interest in staffing its offices with persons the employer fully trusts is given great weight when the pertinent employee helps make policy, handles confidential information or must speak or act—for others to see—on the employer’s behalf”).

The Department may ultimately prevail. Indeed, “the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general.” Pickering. But at the [motion to dismiss] stage, McVeigh has done enough.

Marie A. Mattox (Mattox Law Firm) represents plaintiff.