Ohio Security Guard’s “All Lives Splatter” Meme Protected By The First Amendment

Eric Noble worked as a security guard at the Cincinnati & Hamilton County Library for a little over two years. On May 26, 2020, Noble shared a widely dis­seminated meme on Facebook. It depicted figures being maimed or running to escape from being maimed by a large automobile, with the words “ALL LIVES SPLATTER” above the vehicle. Below the vehicle it read: “NOBODY CARES ABOUT YOUR PROTEST.” Noble’s post was made the day after the murder of George Floyd, from an account that identified him as a public safety officer of the Library. The post remained up for about 24 hours, until Noble took it down at his mother’s suggestion. His Facebook settings limited visibility of his posts to his “friends.” That list comprised a group that included at least 24 people affiliated with the Library.

Library Manager Ella Mulford and other Library employees attended Cin­cinnati’s first BLM protests the weekend after Noble posted the meme. Several employees sent screenshots of the meme to Mulford, who then shared the meme and her concerns about Noble’s post with the Human Resources Department. Two days after the protest, Noble met with his manager and Human Resources Manager Michelle Matthews. During that meeting, Matthews confirmed with Noble that he had reposted the meme. Matthews told him that someone had taken offense at the meme. When asked why he reposted it, Noble said that he thought the meme “was funny.” Matthews placed him on leave pending an investigation into whether the meme had violated the Library’s harassment policy.

As part of the investigation, Matthews interviewed several Library employees, who “expressed disappointment with Noble’s post and apprehension about how the post affected the Library, including how members of the public might perceive it. But Mathews uncovered no evidence that any patron of the Library had seen the post.” As the Court noted in the case that eventually followed Noble’s discharge, the Library, as an institution, had publicly declared its support for the Black Lives Matter movement, and members of the staff would attend protests of the sort de­picted in Noble’s meme the week following his post.

Noble was discharged on June 10, notifying him that his post “caused the Library’s management, his manager, and his coworkers to lose confidence that he can fairly and appropriately wield” his authority as a Library security guard. Noble brought a Section 1983 action against the Library and sought a declaratory judg­ment that the defendants acted unconstitutionally. Each party brought motions for summary judgment at the district court, which granted the defendants’ motion for summary judgment and denied Noble’s competing motion, holding that the Library’s actions did not violate Noble’s First Amendment rights as a public employee. Noble appealed.

The Sixth Circuit reversed, holding that Noble’s speech was entitled to First Amendment protection, and that the Library had unconstitutionally retaliated against him by firing him. To determine whether Noble’s speech as a public employee enjoyed constitutional protec­tion, the Court applied the three-prong Pickering test. That test grants protection based on three factors: (1) the employee must have spoken as a private citizen, not pursuant to his official duties; (2) the speech must have addressed a matter of public concern; and (3) the employ­ee’s interests in speaking on matters of public concern must outweigh the state’s interest, “as an employer, in promoting the efficiency of the public services it performs through its employees.”

That Noble “spoke” as a private citi­zen, and not an employee of the Library, was undisputed, and the Court focused on the latter two prongs. The Court first concluded that Noble had been addressing a matter of public concern when he “communicated his opposition to the BLM protests. Noble provided the following description of the message he meant to convey: ‘I didn’t care about the protests. And if you’re going to protest, that’s fine, you have the right to do so, but when you start breaking the law or stopping traffic or destroying property, I don’t agree it’s a protest anymore. You’re violating the law.’”

The Court held that his speech inter­est outweighed the Library’s interest as an employer. Weighing Noble’s interest in communicating about politics from a personal account against the Library’s interest in effective functioning as a public agency, the court held that the former outweighed the latter, “because no evidence indicates that Noble’s speech significantly hindered Library operations. No member of the public ever complained about Noble’s post. Nor is it likely that the public would have seen the post; Noble kept the meme up for less than a day, his profile settings limited public viewership, and he had few Facebook friends.”