Eric Noble v. Cincinnati & Hamilton Cnty. Pub. Library ( 2024 )

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 24a0169p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
ERIC NOBLE, ┐
Plaintiff-Appellant, │
│
v. │
│
CINCINNATI & HAMILTON COUNTY PUBLIC LIBRARY; > No. 23-3853
│
PAULA BREHM-HEEGER, in her individual capacity; │
BOARD OF TRUSTEES OF THE CINCINNATI & HAMILTON │
COUNTY PUBLIC LIBRARY; KYLA HARDIN, in her │
individual capacity; MONICA DONATH KOHNEN, in her │
individual capacity; ELIZABETH H. LAMACCHIA; KAREN │
R. CLEMONS; NADINE L. ALLEN, in her individual │
capacity; ROBERT G. HENDON, in his individual capacity; │
GREGORY W. OLSON, in his individual capacity; DIANE │
CUNNINGHAM REDDEN, in her individual capacity, │
Defendants-Appellees │
┘
Appeal from the United States District Court for the Southern District of Ohio at Cincinnati.
No. 1:20-cv-00594—Michael R. Barrett, District Judge.
Argued: June 13, 2024
Decided and Filed: August 9, 2024
Before: SUTTON, Chief Judge; McKEAGUE and BUSH, Circuit Judges.
_________________
COUNSEL
ARGUED: Matthew S. Okiishi, FINNEY LAW FIRM, LLC, Cincinnati, Ohio, for Appellant.
Felix J. Gora, RENDIGS, FRY, KIELY & DENNIS, Cincinnati, Ohio, for Appellees. ON
BRIEF: Matthew S. Okiishi, FINNEY LAW FIRM, LLC, Cincinnati, Ohio, for Appellant.
Felix J. Gora, Megan E. Mersch, RENDIGS, FRY, KIELY & DENNIS, Cincinnati, Ohio, for
Appellees.
BUSH, J., delivered the opinion of the court in which McKEAGUE, J., joined.
SUTTON, C.J. (pp. 14–16), delivered a separate dissenting opinion.
No. 23-3853 Noble v. Cincinnati & Hamilton Cnty. Pub. Library, et al. Page 2
_________________
OPINION
_________________
JOHN K. BUSH, Circuit Judge. In 2020, during protests led in part by the organization
known as Black Lives Matter (BLM), plaintiff Eric Noble made the mistake of sharing an
insensitive meme on his personal Facebook page. Only his Facebook friends, who numbered
less than 100, could see his posting. He took down the meme less than 24 hours after it went up
and after his mother had advised that he do so. But it was too late. Some of Noble’s Facebook
friends who worked with him at the Cincinnati and Hamilton County Public Library (“the
Library”) saw the post. They complained to the Library. After an investigation, Noble’s bosses
did not think his quick removal of the meme was good enough that he should be forgiven.
Instead, the Library terminated his employment as a security guard.
There is no evidence that anyone outside the Library ever saw Noble’s short-lived meme,
and there is no proof in the record that he ever did anything at his job, either before or after the
unfortunate post, to cause trouble with his co-workers or Library patrons. Noble alleges that the
Library’s termination of his employment violated his First Amendment rights. We agree. We
reverse the district court’s grant of summary judgment for the defendants and remand with
instructions for summary judgment to be entered in favor of Noble on his First Amendment
retaliation claim.
I
Noble had worked for over two years as a Library security guard. In that role, he helped
secure the Library for patrons and staff. His job responsibilities included “diffus[ing] situations”
with patrons, “[d]iscuss[ing] infractions or violations with customers . . . and escort[ing]
customers from premises if necessary,” and securing staff from “unusual incidents,” like
“deescalating situations with customers [and] being a presence in the event of threats against
staff.” Library Security Guard Position Description, R. 11-8, PageID 479. The Library’s
workplace harassment policy, which Noble signed, required that employees “maintain a working
environment that encourages mutual respect, promotes civil and congenial relationships among
No. 23-3853 Noble v. Cincinnati & Hamilton Cnty. Pub. Library, et al. Page 3
staff members and is free from all forms of harassment and violence.” Library Harassment
Policy, R. 11-7, PageID 478.
Prior to the Facebook post at issue, no one at the Library had ever expressed any concern
about Noble’s work performance or his ability to do his job. Nothing in the record indicates that
he had failed to perform his duties as a security guard or that he had harassed anyone or engaged
in any disruptive behavior while on or off the job. Apparently, though, Noble’s politics were not
the same as those of some of his colleagues.
That became evident in 2020, following the deaths of George Floyd and others. At that
time, the United States experienced extensive protests in support of BLM. See Larry
Buchanan et al., Black Lives Matter May Be the Largest Movement in U.S. History, N.Y. Times
(July 3, 2020), https://www.nytimes.com/interactive/2020/07/03/us/george-floyd-protests-crowd-
size.html. Many people approved of BLM’s protest methods, but many did not because of the
alleged violence and destruction and looting of property associated with them. See Geoffrey
Skelley, How Americans Feel About George Floyd’s Death and the Protests, FiveThirtyEight
(June 5, 2020, 5:58 AM), https://fivethirtyeight.com/features/how-americans-feel-about-george-
floyds-death-and-the-protests/ (citing contemporary polling data to explain Americans’ “mixed
views” on the protests).
The first BLM protests nationwide began on May 26, the day after Floyd’s death.
Derrick Bryson Taylor, George Floyd Protests: A Timeline, N.Y. Times (Nov. 5, 2021),
https://www.nytimes.com/article/george-floyd-protests-timeline.html. That day, at home while
not working, Noble shared the following meme on Facebook:
No. 23-3853 Noble v. Cincinnati & Hamilton Cnty. Pub. Library, et al. Page 4
Noble’s Facebook profile identified himself as a public safety officer with the Library.
As is evident, the meme contained no racial epithets. But it began with a shocking
message—“ALL LIVES SPLATTER”—which was a crude word play on the message “All Lives
Matter,” which in turn had been used by some BLM opponents as a slogan in response to BLM’s
“Black Lives Matter” message. See Simon Goodman, et al., All Lives Matter Discussions on
Twitter: Varied Use, Prevalence, and Interpretive Repertoires, J. Cmty. & Applied Soc. Psych.,
Jan. 23, 2024, at 1 (“All Lives Matter (ALM) has emerged as a response to, and critique of, the
Black Lives Matter (BLM) anti-racist movement.”). The meme ended with an expression of
apathy towards BLM activities—“NOBODY CARES ABOUT YOUR PROTEST”—and also
included the offensive graphic of a vehicle running over protestors. But there is no evidence that
Noble literally wanted “lives” to “splatter” or for a vehicle to run over any protestor.
Noble maintained—and the Library does not seriously dispute—that the meme conveyed only
hyperbole, albeit a highly offensive message.
The meme did not originate with Noble. Apparently, it was designed by someone else,
and he shared it without comment from the Facebook page of another person. Indeed, this meme
No. 23-3853 Noble v. Cincinnati & Hamilton Cnty. Pub. Library, et al. Page 5
appears on a variety of internet sites, including on-line sellers of t-shirts and other paraphernalia
bearing it as a logo. See, e.g., Bucktee, https://bucktee.com/product/all-lives-splatter-nobody-
cares-about-your-protest-shirt (last visited Aug. 8, 2024).
Noble kept the meme on his Facebook page for less than 24 hours. He took it down
before anyone in the Library contacted him about it. His reason for removing it? Apparently
because his mother had asked him to do so, and he had the good sense to listen to her. Also,
Noble had limited his Facebook settings to allow only his Facebook friends to see his posts. He
likely had only between 50 and 100 Facebook friends, less than two dozen of whom were
affiliated with the Library.
But that limited dissemination was enough to catch the attention of people who worked at
the Library and supported BLM. Library manager Ella Mulford and other library employees
attended Cincinnati’s first BLM protests the weekend after Noble did his posting. Several
employees sent screenshots of the meme to Mulford, who then shared the meme and her
concerns about Noble’s post with Kyla Hardin, the Human Resource Director, on June 1, the
Monday following the protest Mulford attended. On June 2, Noble met with his manager, Wei
Liu, 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.” Noble Dep., R. 11, PageID 413. Matthews did not. She placed him on leave
pending an investigation into whether the meme had violated the Library’s harassment policy.
Matthews then interviewed several Library employees as part of her investigation. They
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. And, to the extent that the post spread
to other Library employees beyond Noble’s handful of Facebook friends, the sharing apparently
was done entirely by those who complained about the meme, not Noble himself.
Also, the investigation uncovered no proof that Noble had shared the meme in order to
harass any patron or colleague at the Library. Indeed, there is no evidence that when Noble
No. 23-3853 Noble v. Cincinnati & Hamilton Cnty. Pub. Library, et al. Page 6
reposted the meme, he even knew that any of the Library staff would participate in the BLM
protests later that week.
During this period, the Library itself did not remain neutral on the merits of the protests.
Instead, it actively supported the BLM movement. The Library changed its Facebook profile to
a solid black image and, when Facebook commenters asked the meaning behind the change, the
Library stated in a Facebook comment that “Our Library stands in solidarity against the systems
of oppression and racism that routinely lead to the loss of Black life, such as the murder of
George Floyd, Ahmaud Arbery, and countless others.” Brehm-Heeger Dep. Ex. A, R. 8-1,
PageID 93. The Library’s Director also published a letter expressing the Library’s support for
the BLM protests: she condemned the “senseless deaths of George Floyd, Breonna Taylor,
Ahmaud Arbery, and the many other Black lives in America” and promised to promote “a more
equitable future.” Brehm-Heeger Dep. Ex. B, R. 8-2, PageID 94–96. There is no evidence that
Library’s support of BLM was part of its government mission to lend books and provide other
services. Nor is there proof that the Library allowed anyone to express any opinion contrary to
the political messages expressed on the Library’s website.
The Library fired Noble on June 10. His termination letter stated that his Facebook post
violated the Library’s harassment policy and “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 Termination Letter 1, R. 9-12, PageID 223. It also noted that,
as a result, Noble could “do significant harm to the Library’s relationship with the diverse
communities that [the Library] serve[s].” Id.
Noble sued the Library and several others, asserting that the defendants terminated him
for exercising his First Amendment right to free speech. To remedy this alleged constitutional
violation, he sought damages under 42 U.S.C. § 1983 and a declaratory judgment under
28 U.S.C. § 2201, et seq., that the defendants acted unconstitutionally. The parties cross-moved
for summary judgment. The district court 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 timely appealed.
No. 23-3853 Noble v. Cincinnati & Hamilton Cnty. Pub. Library, et al. Page 7
II
We review a grant of summary judgment de novo. Morgan v. Trierweiler, 67 F.4th 362,
366 (6th Cir. 2023). Summary judgment is appropriate if “the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). A genuine issue of material fact exists when “the evidence is such
that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). In this analysis, the court “must view all the evidence
and draw all reasonable inferences in the light most favorable to the non-moving party.”
Rhinehart v. Scutt, 894 F.3d 721, 735 (6th Cir. 2018) (citing Anderson, 477 U.S. at 255).
III
To prevail on his First Amendment retaliation claim, Noble must show that “(1) he
engaged in constitutionally protected speech or conduct; (2) an adverse action was taken against
him that would deter a person of ordinary firmness from continuing to engage in that conduct;
and (3) . . . the adverse action was motivated at least in part by his protected conduct.” Bennett
v. Metro. Gov’t of Nashville & Davidson Cnty., 977 F.3d 530, 537 (6th Cir. 2020) (cleaned up).
As a public employee, whether his speech was constitutionally protected under the first element
depends on a “three-prong test.” Myers v. City of Centerville, 41 F.4th 746, 760 (6th Cir. 2022).
First, the employee must have spoken as a private citizen, not pursuant to his official duties.
Garcetti v. Ceballos, 547 U.S. 410, 421 (2006). Second, the speech must address a matter of
public concern. Connick v. Myers, 461 U.S. 138, 142 (1983). And third, 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.”
Pickering v. Bd. of Educ. of Twp. High Sch. Dist. 205, 391 U.S. 563, 568 (1968). Because it is
undisputed that Noble “spoke,” through reposting the meme, as a private citizen, we address only
the second and third prongs of this test.
No. 23-3853 Noble v. Cincinnati & Hamilton Cnty. Pub. Library, et al. Page 8
A. Noble Spoke on a Matter of Public Concern
“To determine whether speech involves a matter of public concern, we look to the
‘content, form, and context of a given statement, as revealed by the whole record.’”
Meriwether v. Hartop, 992 F.3d 492, 508 (6th Cir. 2021) (quoting Connick, 461 U.S. at 147–48).
“When speech relates ‘to any matter of political, social, or other concern to the community,’ it
addresses a matter of public concern.” Id. (quoting Connick, 461 U.S. at 146). And the speech
must “focus” on public issues, Rodgers v. Banks, 344 F.3d 587, 600 (6th Cir. 2003), not just
private interests, Farhat v. Jopke, 370 F.3d 580, 593 (6th Cir. 2004).
Noble spoke on a matter of public concern. His reposted meme communicated his
opposition to the BLM protests, which were active throughout the nation at that time. 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.” Noble Dep., R. 11, PageID 413. Whether one agrees with
Noble’s views or not, there is no question that he spoke to a matter of public concern—namely,
whether the alleged violent and destructive tactics of BLM were appropriate means to protest the
deaths of George Floyd and others.
That the meme communicated this message in an insensitive manner does not affect this
analysis, because “[t]he inappropriate or controversial character of a statement is irrelevant to the
question whether it deals with a matter of public concern.” Rankin v. McPherson, 483 U.S. 378,
387 (1987). For example, in Rankin, a public employee responded to an assassination attempt on
the life of President Reagan with the remark that “if they go for him again, I hope they get him.”
Id. at 381. That outrageous statement, the Supreme Court held, was a matter of public concern.
Id. at 386. If advocacy of killing the president can be a matter of public concern, then the
meme’s depiction of a vehicle running over protestors does not detract from the conclusion that
Noble communicated on a matter of public concern as well.
Also consider Marquardt v. Carlton, 971 F.3d 546, 548 (6th Cir. 2020) (Marquardt I),
where we held that a Facebook post dealt with a matter of public concern when it “expressed
No. 23-3853 Noble v. Cincinnati & Hamilton Cnty. Pub. Library, et al. Page 9
satisfaction at” the “killing” of a twelve-year-old Black boy, Tamir Rice, by police.
Notwithstanding the highly inappropriate nature of the post, the Marquardt I court concluded
that its speech addressed a matter of public concern, not a personal grievance. Id. at 551. We
noted that the plaintiff had spoken through Facebook—a platform designed for disseminating
thoughts across a large audience—which further contributed to elevating the speech to a matter
of public concern, even though the Facebook account limited the post’s visibility to Facebook
friends. Id. Though Noble’s Facebook post arguably was not as offensive as the post in
Marquardt,1 that precedent likewise confirms the public nature of his speech.
We therefore conclude that Noble, through reposting the meme on his Facebook page,
expressed his views on a matter of public concern.
B. Noble’s Speech Interest Outweighs the Library’s Efficiency Interest
Because the speech involved a matter of public concern, we next must apply the
Pickering balancing test “to determine if the employee’s free speech interests outweigh the
efficiency interests of the government as employer.” Gillis v. Miller, 845 F.3d 677, 684 (6th Cir.
2017) (internal quotation marks and citation omitted).
Noble’s interest in his speech “receives significant First Amendment weight for two
reasons: its general content and the context in which it was made.” Marquardt v. Carlton, No.
21-3832, 2023 WL 395027, at *3 (6th Cir. Jan. 25, 2023) (Marquardt II). As to content, the
meme “referenced a high-profile public event,” albeit “in [a] distasteful” manner. Id. In the
aftermath of the police shootings of George Floyd and others, there was nationwide debate over
whether the BLM protests were an appropriate response when they resulted in alleged violence,
destruction of property, and looting of businesses that had no relationship to the shootings. See
Skelley, supra. The way in which Noble expressed his opposition to BLM may not have been
1The post in Marquardt read as follows: “Let me be the first on record to have the balls to say Tamir Rice
should have been shot and I am glad he is dead. I wish I was in the park that day as he terrorized innocent patrons
by pointing a gun at them walking around acting bad. I am upset I did not get the chance to kill the criminal
fucker.” Marquardt I, 971 F.3d at 548.
No. 23-3853 Noble v. Cincinnati & Hamilton Cnty. Pub. Library, et al. Page 10
mainstream, but the sentiment that he wished to convey—that the methods of the BLM protests
were counterproductive—was by no means an isolated segment of public opinion.
As to context, the Library fired Noble for a post “made on his private Facebook page
while he was at home and not working,” id., which “raises more First Amendment red flags,”
Bennett, 977 F.3d at 551 (Murphy, J., concurring) (first citing Garcetti, 547 U.S. at 419; and then
citing Connick, 461 U.S. at 153 n.13). There is no evidence that Noble took his politics to work
or that his views on the BLM protests or any other political matter ever interfered with how he
performed his job. To put this in context, consider that the employee in Rankin expressed her
wish for President Reagan’s assassination during the workday. Rankin, 483 U.S. at 381. Noble,
by contrast, was a Switzerland while on the job.
We determine the scope of the Library’s interests by considering whether Noble’s speech
“(1) impairs discipline by superiors or harmony among co-workers, (2) has a detrimental impact
on close working relationships for which confidence and personal loyalty are necessary,
(3) impedes the performance of [Noble’s] duties or interferes with regular operations of the
enterprise, or (4) undermines the [Library’s] mission.” Marquardt II, 2023 WL 395027, at *3.
“Together, these factors center on the [Library’s] effective functioning as a public agency.” Id.This interest increases “as the speech becomes more controversial.” Bennett, 977 F.3d at 554
(Murphy, J., concurring) (citing Rankin, 483 U.S. at 388). And Noble’s criticism of BLM was
very controversial; indeed, it was directly opposite from the political messages on the Library’s
website.
Weighing these competing interests, we hold that Noble’s interest in his speech
outweighs the Library’s claimed efficiency interest because no evidence indicates that Noble’s
speech significantly hindered Library operations. To begin, 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. See Rankin, 483 U.S. at 389 (protecting a public employee’s speech made
privately with another employee, where no evidence suggested that a member of the general
public heard the speech).
No. 23-3853 Noble v. Cincinnati & Hamilton Cnty. Pub. Library, et al. Page 11
Granted, Noble’s speech was highly distasteful, but the First Amendment protects
abhorrent speech, and it does so even if the speech makes others feel quite uncomfortable. Id. at
390–92 (concluding that the Pickering balance favored an employee’s speech that advocated for
the assassination of President Reagan); cf. Snyder v. Phelps, 562 U.S. 443, 461 (2011)
(recognizing that our nation “protect[s] even hurtful speech on public issues to ensure that we do
not stifle public debate”). “[T]he proudest boast of our free speech jurisprudence is that we
protect the freedom to express the thought that we hate.” Matal v. Tam, 582 U.S. 218, 246
(2017) (internal quotation marks and citation omitted). So, for example, the Supreme Court held
that students had a First Amendment right to wear black arm bands in school to protest the
Vietnam War. Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 514 (1969). Nothing
was said by the Tinker Court about protecting the feelings of classmates who may have had
relatives in the military serving America in that conflict. Similarly, the Supreme Court has held
that the First Amendment protects individuals who refuse to salute the flag, or even burn it, and
who engage in homophobic protests at military funerals, despite that such actions deeply offend
many people. W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943); Texas v. Johnson,
491 U.S. 397, 399 (1989); Snyder, 562 U.S. at 458. That is because the First Amendment does
not permit one side of a debate to use the government to cancel the other side. It allows all
perspectives, even the very offensive, to be heard.2
A public employer need not wait until an actual disruption to discipline an employee.
Gillis, 845 F.3d at 687. But its anticipation of disruption must be objectively reasonable.
Bennett, 977 F.3d at 542–45; see also Moser v. Las Vegas Metro. Police Dep’t, 984 F.3d 900,
2To be sure, in the government workplace, there can be limits on political speech. And government
employees may have special responsibilities that limit their constitutional rights to speak as freely as the average
citizen. But this case does not implicate those limits. For example, Noble used no racial slur like the emergency
call center employee in Bennett. 977 F.3d at 534. Nor is this case like Marquardt II, where the employee’s widely
publicized and overtly racially charged speech in “the already-bubbling disturbance” enabled the employer to
predict that the speech would generate clear controversy. No. 21-3832, 2023 WL 395027, at *4. The speech in
Marquardt II also directly implicated the employee’s role: Marquardt worked as a captain within Cleveland’s
Emergency Medical Service, which “responded and transported Rice to the hospital.” Id. at *1. Marquardt’s
inflammatory speech carried real-world implications to the underlying facts, then, because Marquardt could have
played an official hand in the immediate aftermath of the Rice shooting. Id. at *4. Conversely, the Library played
no official part in responding to the protests (though it issued some public commentary in their support). And, when
Noble spoke, no protest had yet occurred in Cincinnati, so his speech did not then carry real-world implications.
No. 23-3853 Noble v. Cincinnati & Hamilton Cnty. Pub. Library, et al. Page 12
907, 910 (9th Cir. 2021) (recognizing that the public employer’s interests against disruptions
from an employee’s “hyperbolic and inappropriate” speech were minimized in part because no
media covered the speech and “the chance that the public would have seen the Facebook
comment remained low because [the employee] deleted that December 2015 comment by
February 2016”); cf. Johnson, 491 U.S. at 409 (“[W]e have not permitted the government to
assume that every expression of a provocative idea will incite a riot, but have instead required
careful consideration of the actual circumstances surrounding such expression[.]”). Without
evidence that any member of the public beyond a few Facebook friends saw the meme,
the Library could not reasonably anticipate any public backlash against the meme that would
disrupt its operations. And though the Library appeared to argue that it could anticipate that
Noble would run over his colleagues or protestors because Noble had access to a Library vehicle
as a security guard, the Library did not seriously raise this argument at oral argument. The
Library could not have reasonably anticipated that Noble’s hyperbolic meme suggested that he
would recklessly drive any Library vehicle. In fact, Noble rarely even drove as part of his job
and there is no evidence that he was ever unsafe behind the wheel.3
Also, as noted, the Library and some of its employees engaged in the same debate as
Noble, although on the opposite side: they publicly supported the BLM movement and attended
related protests after Noble shared the meme. That the Library fired Noble for speech expressing
a view contrary to the powers-that-be at that institution casts doubt on its motive for firing him
and undercuts its workplace harmony interest.
It is true, as the dissent notes, that we afford the employer wide discretion under
Pickering balancing. But still there are limits. Here, the only injuries that resulted from the
speech were the alleged wounded feelings of certain co-workers who had lost trust in him. But,
3The dissent suggests that the meme could be read as an allusion to the driver who ran over and killed
someone and injured many others at a protest in Charlottesville, Virginia in 2017. But the record suggests more that
Noble was clueless as to such potential meaning than that he had it in mind. In any event, even if Noble had
knowingly alluded to Charlottesville, the motivation behind the meme would have been no more repulsive than that
of the protected speech of the worker in Rankin who expressed support for President Reagan’s assassination soon
after an attempt had been made on his life. 483 U.S. at 381. Rankin recognizes a wide parameter of protected
speech, even allowing for hyperbole that references deadly violence. Regardless of how odious this type of
metaphorical speech is, it is our duty to enforce the full scope of First Amendment protection in a consistent fashion
and without regard to which side of the political aisle is offended by the speech.
No. 23-3853 Noble v. Cincinnati & Hamilton Cnty. Pub. Library, et al. Page 13
given Noble’s spotless record as a security guard prior to the meme, there is strong indication
that he would have again performed his duties appropriately had he been allowed to retain his
job, thus restoring that trust. Absent evidence that Noble posed a threat or risk to fellow
workers, his hyperbolic speech alone was not enough to fire him. 4 Given the short time Noble
kept the meme on his Facebook page, its limited viewership, and the lack of public response, the
Library could not have reasonably expected that Noble’s post would incite disruption.
Pickering does not give the Library carte blanche to take away Noble’s means of livelihood
based on his speech. The balance favors Noble, not the Library.5
IV
Because Noble’s speech enjoys First Amendment protection, we reverse the district
court’s grant of summary judgment to the defendants. And because the Library fired Noble
because of his protected speech, we remand for the district court to grant summary judgment to
Noble on his First Amendment retaliation claim.
4It’s worth emphasizing that Noble reposted the meme before any BLM protest occurred in Cincinnati, so
the offended co-workers who attended those protests could not reasonably have concluded that Noble targeted them
through the meme.
5Contrary to what the dissent suggests, the fact that Noble was a public-facing employee does not alter this
analysis. Again, there is no proof that any patron objected to Noble’s meme or even saw it. But, in any event, it was
not a prerequisite to be a security guard at the Library that the guard share the politics of book borrowers or
librarians.
No. 23-3853 Noble v. Cincinnati & Hamilton Cnty. Pub. Library, et al. Page 14
_________________
DISSENT
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SUTTON, Chief Judge, dissenting. The Pickering line of cases requires us to answer
three questions: (1) Did Noble speak as a private citizen? (2) Did he speak about a matter of
public concern? (3) Did his interest in speaking outweigh the library’s interest as an employer?
Pickering v. Bd. of Educ. Twp. High Sch. Dist. 205, 391 U.S. 563, 568 (1968); Bennett v. Metro.
Gov’t of Nashville & Davidson Cnty., 977 F.3d 530, 537 & n.1 (6th Cir. 2020). If the answer to
all three questions is yes, the First Amendment protects Noble’s speech. No one doubts that
Noble spoke as a private citizen. Cf. Garcetti v. Ceballos, 547 U.S. 410, 426 (2006). And the
majority correctly concludes that Noble’s post addressed a matter of public concern. See City of
San Diego v. Roe, 543 U.S. 77, 83–84 (2004) (per curiam); Rankin v. McPherson, 483 U.S. 378,
386 (1987).
The crux of today’s case, then, is the third question: Did Noble’s interest in speaking
“outweigh” the interests of the library? This requires us to “balance” Noble’s interest in
“commenting upon matters of public concern” with the library’s interest “as an employer, in
promoting the efficiency of the public services it performs.” Pickering, 391 U.S. at 568. How to
make that call? “Because of the enormous variety of fact situations” that could arise under this
test, as illustrated by this case, the Supreme Court has declined to give specific guidance. Id. at
569; Connick v. Myers, 461 U.S. 138, 150 (1983). Deciding whether Noble has a greater interest
in commenting on protests or whether the library has a greater interest in managing its workplace
leaves us with the ineffable task of “judging whether a particular line is longer than a particular
rock is heavy.” Bendix Autolite Corp. v. Midwesco Enters., Inc., 486 U.S. 888, 897 (1988)
(Scalia, J., concurring). Even if we could strike the right balance between these competing
interests, the task would give us the unenviable role of acting like “legislators, not judges.” June
Med. Servs. L.L.C. v. Russo, 591 U.S. 299, 349 (2020) (Roberts, C.J., concurring); see Bennett,
977 F.3d at 547–56 (Murphy, J., concurring).
No. 23-3853 Noble v. Cincinnati & Hamilton Cnty. Pub. Library, et al. Page 15
Faced with these push-and-pull vexations, we should preference the concrete over the
abstract. In Bennett, an emergency call center employee used the n-word in a Facebook
comment while discussing the presidential election. 977 F.3d at 533. Even though the employee
had an interest in speaking, we held that the employer’s interests outweighed it. The comment
caused several colleagues to question whether they could rely on the employee to act impartially,
and the comment risked damaging the “public perception” of the call center. Id. at 540–42.
These concerns were especially acute due to the employee’s “public-facing role” in fielding
emergency calls. Id. at 542. In Marquardt, likewise, we ruled for an employer who fired an
emergency medical service captain after he posted on his private Facebook account that he
wished he had killed a twelve-year-old boy shot by police. Marquardt v. Carlton, No. 21-3832,
2023 WL 395027, at *3–4 (6th Cir. Jan. 25, 2023). While the employee’s interest in speaking
“receive[d] significant First Amendment weight,” we held that the employer’s “interest in
preventing the disintegration of public trust” tipped the scales due to the “explosive” reaction to
the boy’s death. Id.Noble’s case presents many of these same dynamics. He posted a meme depicting
violence against Black Lives Matter protestors, an image that would invoke for many the horrific
attack in Charlottesville a few years earlier. Noble’s post also spread beyond his narrow group
of Facebook friends, causing considerable dismay among his colleagues. Multiple employees
worried that Noble would treat library patrons unfairly, and some expressed hesitation in calling
him to respond to public safety concerns, which was precisely Noble’s main job. As in Bennett
and Marquardt, Noble’s role was public facing, and his actions ran the risk of undermining the
public’s trust in the library and its staff. True, his speech did not generate precisely the same
public relations risk as those cases, but employers need not “allow events to unfold” “before
taking action.” Gillis v. Miller, 845 F.3d 677, 687 (6th Cir. 2017) (quotation omitted). True
also, his speech did not create any risk that he would engage in violence on the job. But the
library could “reasonably predict” a potential “disruption” given this highly charged political
environment and the immediate spreading of Noble’s post that had already occurred. See id.; see
also Connick, 461 U.S. at 152; Marquardt, 2023 WL 395027, at *4. In such contexts, the
No. 23-3853 Noble v. Cincinnati & Hamilton Cnty. Pub. Library, et al. Page 16
Supreme Court counsels that “a wide degree of deference to the employer’s judgment is
appropriate.” Connick, 461 U.S. at 151–52. Just so here. I respectfully dissent.