Georgia: Confederate Flag-post by Demoted Officer Not Protected by First Amendment
A deputy police chief demoted after posting on Facebook a Confederate flag image may not proceed with his First Amendment retaliation claims, a federal district court in Georgia ruled. His employer, the Clayton State University (CSU) police department, had an interest in maintaining its reputation, and good working relationships outweighed the officer’s First Amendment interest. Even if that were not the case, the individually named chief of police was entitled to qualified immunity because the officer’s right to speak as he did was not clearly established. The defendants’ motions to dismiss were granted (Duke v Hamil, February 4, 2014, Story, R).
Post-election Facebook post. Days after the 2012 presidential election, the plaintiff, an eight-year veteran of the university police department, posted on Facebook an image of the Confederate flag with an accompanying phrase, “It’s time for the second revolution.” He intended the image only to be shared with those people with direct access to his Facebook page, which included close friends and family. He was not on duty at the time and his Facebook profile did not reference his place of employment. Although he removed the post within one hour, the damage was already done: Someone provided an image to a local television station, which ran the story on the evening news. The story identified his position as a deputy chief with the university police department.
Capt. Rex Duke said the message he put on his Facebook page two days after the recent election is his personal opinion and has nothing to do with his job.
Thereafter, the police department received anonymous complaints about the employee and the university started an investigation. In the final report, the chief of police recommended the employee’s demotion and noted that officers should not publicly espouse their political beliefs. As a result of the demotion, the officer’s pay was cut by $15,000 and he was put on a less desirable morning shift. Later, he voluntarily resigned, then filed suit against the chief of police, both officially and individually, and the board of regents of the University System of Georgia, which operates CSU.
Pickering test. Claims for First Amendment retaliation are governed by the four-part Pickering test. The first two prongs of that test — whether the speech involved a matter of public concern and whether the plaintiff’s interest outweighed the government’s legitimate interest in efficient public service — were questions of law and, in this case, were the only two that the court needed to consider. With regards to the first prong, the employee was speaking as a citizen, the court found, and not as an employee pursuant to his official duties or in fulfillment of his responsibilities to his employer. He posted the image and statement on his personal Facebook page, which did not identify his employer. Also, the statement did not make reference to any of the police department’s policies, practices, or employees.
Whether his speech was a matter of public concern was a closer question. The officer claimed he was expressing his dissatisfaction with Washington politicians. Although the employer argued that the phrase he posted was not related to a legitimate concern, the court determined that it could be “fairly considered to relate to matters of political concern in the community.” The Confederate flag could relay a variety of messages, the court noted, including “political or historical points of view.” Even if the message had been more radical, it would still be related to political and social concerns, albeit with a controversial point of view.
Employer’s reputational interest. Important to the Pickering analysis, the court noted, was the understanding that employers deserved wide latitude in management and needed to be able to take action against employees who disrupted the efficient operation of government. This interest in efficient public service was particularly strong in the context of police departments, which have a particular need to maintain a favorable public reputation. The court needed to assess whether the specific speech impeded this ability. It also had to consider the time, place, and manner of the speech, as well as the context within which it was made. Having done so, the court found the officer’s interest in speaking did not outweigh the employer’s interests.
Although the officer alleged that his speech did not actually cause disruption, the court noted that the police chief nevertheless had an interest in preventing the speech from impeding the department’s functions. Facially, the officer’s speech could convey a message far different from what was claimed by the officer. Those messages were divisive, prejudicial, and controversial, and they came from the officer who was second in command in the department. The chief of police did not have to wait to see what happened as a result of that controversy before addressing it. Given the officer’s supervisory role, the speech could undermine working relationships within the department if it were not addressed.
Moreover, his speech received public attention and implicated the public trust, which could justify preemptive action. Indeed, the court noted, this potential for harm was “more than conjecture.” As deputy chief, his actions reflected on the department’s reputation more significantly, and many in the community would take offense at his speech because it raised concerns of prejudice. And it appeared to advocate revolution, which could undermine confidence in the department because the officer was supposed to uphold law and order.
Internet posts a “gamble.” Although the officer was off-duty and off-campus, and he posted the picture and comment in a private Facebook account intended to be viewed only by close friends and family, this case illustrated the “very gamble individuals take in posting content on the Internet,” the court noted. While the officer contended his speech was not violent, threatening, or directed at the police department, the court noted that his chosen manner of speech — the use of a symbol that was vulnerable to many meanings — left “ample room for interpretation.” Taken in the politically charged context in which it was posted, the post had heightened potential to damage the department’s interests. It appeared to advocate a revolution during a presidential election, an idea it associated with a Confederate flag. In so doing, the officer “likely sent a partisan, if not prejudicial, message to many” in the department and the community it served. After weighing all of these factors against the officer’s interest, the court found no First Amendment violation.
Immunity. Even if the employee’s rights had been violated, the chief of police would have been entitled to qualified immunity because the right in question was not clearly established. The Eleventh Circuit addressed the issue of qualified immunity in a case involving a police officer and determined that unless the Pickering analysis led to an “inevitable conclusion” that the action was unlawful, qualified immunity would apply. Here, obviously, the outcome did not so evidently favor the officer that the chief would have been expected to know that his action would result in a constitutional violation. Moreover, with regards to the claims against the board of regents, the court determined that it was entitled to Eleventh Amendment immunity.
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Virginia: State’s “Glory” Regiment Celebrates Anniversary
FREDERICKSBURG, Va. — Director Edward Zwick’s 1989 film “Glory” highlighted the organization and early service of the justly famous 54th Regiment Massachusetts Infantry (Colored) — its official name.
The thousand or so brave men who served in this regiment were just a fraction of the nearly 200,000 African-Americans who wore Union blue, mostly infantry.
Many served as Lincoln had anticipated in the Emancipation Proclamation; namely, “to garrison forts, positions, stations, and other places.” A small number entered combat, and many of those demonstrated the courage, determination and willingness to give their lives for a cause that marked a true “glory” outfit such as the 54th.
Even though most of the African-American regiments operated under direct government oversight (hence their designation as United States Colored Troops, or USCT), they were all initially recruited and organized by state. Six were raised in whole or in part in Virginia.
Actor Denzel Washington, center, is flanked by Jihmi Kennedy, left, and Morgan Freeman, right, is Tri-star Pictures movie “Glory” about black soldiers of the 54th Regiment who fought in the Civil War. — (March 5, 1990.)
The 38th USCT is Virginia’s “Glory” regiment. It was mustered into service on Jan. 23, 1864. While Northern African-American regiments such as the 54th could count a good number of free blacks in its ranks, Southern regiments, such as the 38th, were largely drawn from recently liberated slave populations. Training emphasis would have been on the basic formations for movement and deployment, and it wasn’t unusual for raw troops to enter combat without having fired their weapons.
In August 1864, the 38th USCT was assigned to the Army of the James, then operating as part of the Union forces confronting Petersburg and Richmond.
The first military action for the 38th took place on Sept. 29, 1864, resulting in one of the severest engagements involving black troops in the Civil War. It also produced more USCT Medal of Honor winners than any other battle of the conflict.
Hoping to find a weak spot along the Confederate defensive lines that stretched from outside Richmond to below Petersburg, Lt. Gen. Ulysses S. Grant organized a two-pronged operation. While the Army of the Potomac went after the Rebel southern flank below Petersburg, the Army of the James tackled the northern end outside Richmond.
Maj. Gen. Benjamin F. Butler, commanding the Army of the James, sent his white troops against Fort Harrison and his black ones against New Market Heights, which was well-fortified
A first assault by two USCT regiments in a companion brigade was repulsed with 387 casualties. A second attack was organized, which included the 38th USCT.
As the Confederates began falling back, the black troops they had been targeting for a half hour gave a shout. They rushed into the enemy positions where a Rebel rear guard was overwhelmed.
Seventeen members of the 38th were dead and 94 wounded in this terrible fight.
The regiment mustered out on Jan. 25, 1867. Except for some administrative documents, its soldiers left no paper trail. So fitting epitaphs must come from other Army of the James veterans. “We ask to be made equal before the law,” said one, “grant us this and we ask no more.” Another wanted the world to know that through their sacrifices black soldiers more than proved “themselves in every respect to be men.”
Noah Andre Trudeau is the author of eight Civil War histories. He wrote this for The Free Lance-Star in Fredericksburg, Va.
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Georgia: Chickamauga Show Draws Vendors
The Chickamauga Civil War show returns to the trade center for the 19th straight year this weekend, and promoter Mike Kent promises this will be the biggest one yet.
“We are bumping up against 500 (vendor) tables this year,” Kent said. “We have been able to put an extra 32 or so tables in up there, so this will be the biggest show we have ever held in Dalton.”
Kent, who promotes Civil War shows across the country, says the Dalton show has long been the second largest one he produces each year, behind his show in Franklin, Tenn.
“The Southeast — Georgia, Tennessee, Virginia, the Carolinas — is our biggest producer of vendors,” Kent said. “But we’ll have one from California, one from Texas, several from New York. I have a guy from England who comes every year, and he’ll be back this year.”
Kent said customers also attend from across the nation.
“Every year, we have guys who stop buy the admissions table and say ‘I just flew from Texas’ or ‘I came in from Utah or California just for this show,’” he said.
Kent said one of the reasons the show keeps growing is his decision to open the show up to material and artifacts from World War I and World War II.
“We’ve done that for all of our shows, and lot of our vendors also collect World War I and World War II memorabilia, and this gives them the opportunity to showcase it,” Kent said. “That stuff has really exploded. There’s a big and growing interest in World War I and World War II, and that material is generally less expensive than the Civil War memorabilia.”
Each year, Kent brings in something special for the Dalton show.
“This year we have an Abraham Lincoln impersonator doing a living history class who will be there,” he said. “When he gets dressed up in his top hat and coat, and when he’s sitting at his desk surrounded by the trappings, it’s amazing. You can have your picture taken with him, and kids are just enthralled by this guy.”
In addition to the Civil War show, Dalton State College’s Bandy Heritage Center for Northwest Georgia presents a free colloquium Saturday on the Atlanta Campaign.
Called “The Devil Went Down to Georgia,” the event kicks off at 9 a.m. in the trade center theater with several noted historians and authors talking about the campaign and concludes at 2:30 p.m. with a roundtable discussion and book signing.
-Dalton Daily Citizen
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