Labor & Employment Law Daily Wrap Up, INDIVIDUAL RIGHTS—8th Cir.: Firefighter, terminated after provocative anti-abortion Facebook post, revives claims, (Aug 14, 2025)

By Todd Harrison, J.D.

The post depicted a fetus in the womb with a noose around its neck, captioned with “I can’t breathe!”

Reversing a district court’s dismissal of a former firefighter’s First Amendment retaliation claims relating to his termination following a provocative Facebook post, the Eighth Circuit determined that the post concerned constitutionally protected activity and that any evidence the subsequent public controversy disrupted the activities of the Forrest City fire department was “thin.” Despite a public outcry, no other firefighter complained or confronted the firefighter, nor did any coworker or supervisor refuse to work with him. Any potential fallout from the post was “predictive,” said the court, and the district court erred in giving the mayor’s belief the post would impact the ability of the fire department to do its job considerable judicial deference (Melton v. City of Forrest City, Arkansas, No. 23-3398 (8th Cir. Aug. 13, 2025)).

Facebook post. The firefighter in this case is a pro-life, evangelical Christian. In June 2020, he reposted a black-and-white image on his Facebook page depicting the silhouette of a fetus in the womb with a noose around its neck captioned with, “I can’t breathe!” His purported intent was to convey his anti-abortion beliefs.

Two weeks after posting the image, a retired fire department supervisor complained to the firefighter that he thought it looked like a noose around the neck of Black child. He was also upset because the caption was associated with the protests surrounding the murder of George Floyd. The firefighter agreed to delete the post immediately.

Termination. Deleting the post was not enough for Forrest City’s mayor. The next day, he placed the firefighter on administrative leave pending an investigation. He opted to terminate the firefighter’s employment the following day due to the image’s “egregious nature.”

Public fallout. The mayor’s decision was driven by the “huge firestorm” the image had created. Among other things, the fire chief’s phone had been “blowing up,” “several” police officers had become upset, and phone lines were jammed with calls from angry city council members and citizens, some of whom stated that they did not want the firefighter to respond to calls to their homes.

Lawsuit. After a grievance failed to get the firefighter his job back, he brought a First Amendment retaliation claim against Forrest City and the mayor in both his individual and official capacities. He also included one against Forrest City for what he alleged was an unwritten policy granting city officials unbridled discretion to censor employee speech.

Granting summary judgement against the claims, the district court determined that qualified immunity shielded the mayor in his individual capacity, and the lack of an unwritten policy doomed the official-capacity and unbridled-discretion claims. This appeal followed.

Qualified immunity. First, the firefighter contended that the mayor was liable in his individual capacity because he admitted that the Facebook post itself, and the ensuing “firestorm” it created, was the reason for terminating the firefighter.

Evaluating this argument required the court to consider qualified immunity, the availability of which hinged on two questions: (1) did the mayor violate a constitutional right; and (2) was the right clearly established?

Protected activity. According to the district court, the firefighter’s post did not concern constitutionally protected activity. The court here disagreed, noting that the firefighter posted the image to his personal Facebook page on his own time and that his speech involved matters of public concern.

Impact. As to whether the speech had a negative impact on Forrest City’s delivery of public services, the court found this to be a closer call but ultimately concluded that “the evidence of disruption is thin.”

It was undisputed there was no disruption of training at the fire department or of any fire service calls because of the controversy engendered by the post. Instead, the mayor contended that the “firestorm” itself is what disrupted the work environment, pointing to the calls to city hall.

The problem, explained the court, was that there was no showing of an impact on the fire department itself. No other firefighter confronted the firefighter about the post nor did any coworker or supervisor refuse to work with him. Granting summary judgment on such vague and conclusory concerns “runs the risk of constitutionalizing a heckler’s veto,” said the court. Further, there was no showing of how the public outcry actually affected the government’s ability to deliver public services, such as fighting fires and protecting public safety.

Predictive. Much of what remained, continued the court, was predictive. The mayor, for example, stated that “conveying racist messages against Black people [would] affect trust between firefighters.” However, in order for a reasonable prediction to be sufficient to take a case out of the hands of a jury, a decisionmaker is required to do more than make a vague statement in response to a conditionally worded question about what could happen, explained the court.

“When the record and the prediction do not match, it will usually be up to the jury to resolve the discrepancy and determine whether the prediction was reasonable enough to be entitled to ‘substantial weight,’” said the court, going on to state that what the district court should not have done was give the mayor’s belief considerable judicial deference.

Clearly established. If the First Amendment protects the firefighter’s speech, then a determination as to whether the constitutional violation was clearly established must be considered. Insufficient evidence of a disruption would be fatal to a claim of qualified immunity because there would be no governmental interest to weigh, explained the court.

On the other hand, if a jury were to find sufficient evidence of disruption to invoke a Pickering balancing test, then the asserted First Amendment right would likely not be considered to be clearly established. Resolving this issue will ultimately determine whether the firefighter’s retaliation claim can succeed, said the court.

Unbridled discretion. Turning to the firefighter’s unbridled discretion claim, the court noted that there was no suggestion Forrest City employees require pre-approval to post on their personal social media pages. If an unwritten policy exists here, it at most allows officials to intervene later, once the speech in question is publicly available.

Given that facial challenges are disfavored, the court declined to extend the unbridled discretion doctrine to cover after-the-fact actions taken against government employees for their speech, which is already covered under First Amendment retaliation claims.

Accordingly, the court reversed the grant of summary judgment against the firefighter’s First Amendment retaliation claims against the mayor and Forrest City and remanded for further proceedings.

The case is No. 23-3398.

Judge: Stras, D.

Attorneys: Frank H. Chang (Consovoy McCarthy) for Steven Melton. Sara Lynn Monaghan, Arkansas Municipal League, for City of Forrest City, Arkansas.

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