The 1st amendment is still alive, even for an employee who posted a "shocking" and "highly offensive" message on his Facebook page.

The 6th Circuit recently held that a public library violated the 1st amendment when it fired a security guard for posting a meme that said “ALL LIVES SPLATTER” — obviously a crude word play on the message “All Lives Matter.” The meme ended with “NOBODY CARES ABOUT YOUR PROTEST.”

Noble v. Cincinnati & Hamilton County Public Library (6th Cir 08/09/2024) [PDF].

The security guard's Facebook page has less than 100 friends. He took down the meme less than 24 hours after it went up. But some of the friends worked at the library, and they complained.

The court applied a familiar two-step analysis:

First, he spoke as a private citizen, not pursuant to his official duties, on a matter of public concern.

Second, the employee's speech interest outweighs the library’s efficiency interest. There was no evidence that his speech significantly hindered Library operations. Nobody from the public complained about it. And some of the library's employees engaged in the same debate, although on the opposite side.

I love this line from the court: "It was not a prerequisite to be a security guard at the Library that the guard share the politics of book borrowers or librarians."

There was a dissenting opinion that would hold that the balance tipped in favor of the library because the library could reasonably predict a potential disruption given this highly charged political environment and the immediate spreading of the post that had already occurred.