Gary Hicks v. Illinois Department of Corrections

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 23-1091

GARY HICKS,

Plaintiff-Appellant,

v.

ILLINOIS DEPARTMENT OF CORRECTIONS, ET AL.,

Defendants-Appellees.

____________________

Appeal from the United States District Court for the

Central District of Illinois.

No. 3:20-cv-03099 — Sue E. Myerscough, Judge.

____________________

ARGUED NOVEMBER 29, 2023 — DECIDED JULY 23, 2024

____________________

Before RIPPLE, SCUDDER, and JACKSON-AKIWUMI, Circuit

Judges.

JACKSON-AKIWUMI, Circuit Judge. The Illinois Department

of Corrections suspended corrections sergeant Gary Hicks for

10 days after an internal investigation into his Facebook

posts—posts a news article described as “Islamophobic” and

“offensive.” The internal investigation concluded that Hicks

violated Department policies banning “conduct that is unbe-

coming of a State employee or that may reflect unfavorably

2 No. 23-1091

on or impair operations of the Department.” Hicks sued the

Department and various officials connected to the discipli-

nary process under 42 U.S.C. § 1983, alleging a First Amend-

ment retaliation claim and an as-applied Fourteenth Amend-

ment challenge to the Department’s policies. The district court

granted summary judgment in favor of the defendants on

both claims, and Hicks appeals.

We conclude that Hicks cannot sustain a First Amendment

retaliation claim because the Department’s interest in manag-

ing its affairs outweighs the interest Hicks had in posting the

content. Nor can Hicks sustain an as-applied Fourteenth

Amendment challenge because someone in his supervisory

position would not have to guess that their actions may be

“unbecoming of,” “reflect unfavorably on,” “or impair oper-

ations of the Department.” We therefore affirm.

I

A. Factual Background

On September 4, 2019, the Chicago Sun Times published

an article accusing Illinois Department of Corrections em-

ployees of posting “offensive” and “Islamophobic” content

on Facebook. One post included statements like, “abortion is

murder,” “homosexuality is sin,” and “Allah is not god.” An-

other post listed “Things We Don’t See Jews Doing,” includ-

ing “Flying Planes Into Buildings,” “Forcing Young Girls to

Marry Old Men,” “Mutilating Female Genitalia,” “Trying to

Dominate the World,” and “Trying to Destroy America.” A

different post depicted a member of the United States House

of Representatives, labeling her as “musslamic” and encour-

aging her arrest. Another post included a prayer: “Dear Lord,

if there must be a civil war or a government overthrow, please

No. 23-1091 3

let it happen before I am dead or too old to fight in it. Amen.”

The Department later learned of a fifth post that the news ar-

ticle did not discuss. This post depicted a different United

States Representative in a sombrero, referred to her surname

as the “Mexican word of the day,” and encouraged her to

leave “if [she] don’t like the USA.”

The article identified Gary Hicks as the employee behind

the first four posts described above. Indeed, at the time the

article ran, Hicks maintained a Facebook profile. He made his

profile publicly accessible; anyone could view its content.

And on his profile, he listed his occupation as “Corrections

Sergeant at Illinois Department of Corrections” and shared a

photo of himself in Department uniform.

Sometime before the Chicago Sun Times published the ar-

ticle, a reporter contacted the Department’s public infor-

mation officer to discuss the Facebook posts. The day after the

article ran, Rob Jeffreys, Director of the Department, sent an

email to all staff reminding them to follow the Department’s

code of conduct while using social media. Jeffreys would later

explain that he sent this email in response to his concern about

litigation stemming from Department employees “posting

things derogatory about the people we have in custody . . . .

along the lines of religion, race, [and] sexuality.” At the time,

an inmate named Tay Tay led a class of transgender inmates

in a lawsuit against the Department for deliberate indiffer-

ence to harassment and discrimination. The district court in

the Tay litigation would later reference Facebook posts by De-

partment employees other than Hicks when entering a pre-

liminary injunction against the Department. The Tay court

found the employees’ posts “reflect[ed] ignorance, sexism,

and racism,” and that a “deep-seeded culture of ignorance,

4 No. 23-1091

harassment, and discrimination” existed within the Depart-

ment.

The media attention prompted Josh Cheek, a Department

investigator, to begin an internal investigation into Hicks’s so-

cial media posts. Investigator Cheek interviewed Hicks, who

admitted to the posts and explained they reflected his per-

sonal political and religious views. Hicks said his views never

impacted his work with the Department.

Investigator Cheek concluded that the social media posts

violated the code of conduct. The code requires “employees

to conduct themselves in a professional manner and, whether

on duty or not, not engage in conduct unbecoming of a State

employee or that may reflect unfavorably on or impair oper-

ations of the Department.” Beyond summarizing the news ar-

ticle and what Hicks said when interviewed, Investigator

Cheek’s two-page final report did not say much. The report

asserted that “the posts do reflect negatively on the [D]epart-

ment as well as the [D]epartment[’]s overall mission” and

charged Hicks with violating the Department’s code of con-

duct. The Department informed Hicks of the charges.

On October 15, 2019, the Department convened an Em-

ployee Review Board Hearing to give Hicks an opportunity

to respond to the report. At the hearing, the hearing officer

read the charges and heard statements from Hicks, his Union

Representative, and a Management Representative. Hicks of-

fered no witnesses other than himself, saying he did not in-

tend the posts to offend anyone. The hearing officer con-

cluded Hicks violated the code of conduct and recommended

a 10-day suspension.

No. 23-1091 5

Both Jeffreys, the Department’s Director, and John Eilers,

in a dual role as Chief of Operations and temporary Chief of

Staff, approved the 10-day suspension, effective November 4

through November 14, 2019. This was the first and only time

the Department disciplined Hicks during his 18 years of em-

ployment.

B. Procedural History

Hicks sued the Department, Jeffreys, Eilers, and three

other officials (collectively, “Defendants”), alleging violations

of his First Amendment free speech rights and Fourteenth

Amendment due process rights.

The district court entered summary judgment for Defend-

ants on both claims. The court held Hicks’s suspension did

not violate the First Amendment because his posts were not

on matters of public concern, he took deliberate steps to link

himself and his posts to his government employment, and the

Department’s interest as an employer outweighed his interest

in speaking. Alternatively, the court held, qualified immunity

shielded Defendants from the First Amendment challenge be-

cause clearly established law does not provide the right to

share such posts publicly while identifying oneself as a De-

partment employee. The district court granted summary

judgment to Defendants on the Fourteenth Amendment due

process claim on qualified immunity grounds, explaining that

the law does not clearly establish that the Department’s stand-

ards were impermissibly vague as applied to Hicks’s Face-

book activity.

This appeal followed.

6 No. 23-1091

II

Hicks raises several issues on appeal: (1) whether the De-

partment violated his First Amendment rights by suspending

him because of his Facebook posts; (2) whether the Depart-

ment’s code of conduct violated the Fourteenth Amendment

because it is impermissibly vague as applied to him; and (3)

whether the individual Defendants are entitled to qualified

immunity for any unconstitutional acts they may have com-

mitted. We review these questions de novo, and must reverse

the district court’s summary judgment decision if we decide

that a reasonable jury could have rendered a verdict in favor

of Hicks. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252

(1986).

We conclude that the First and Fourteenth Amendment

claims are without merit. This also means we need not reach

the qualified immunity question.

A. First Amendment

As a general matter, protecting the public’s interest in hav-

ing citizens speak about and debate matters of public concern

“lies at the heart of the First Amendment.” Lane v. Franks, 573

U.S. 228, 236 (2014).

But to resolve this appeal, we must consider the First

Amendment rights of a specific group: public employees.

Public employees do not sign away their free speech rights

when answering the call to public service; at the same time,

public employees’ rights to free speech are not absolute. City

of San Diego v. Roe, 543 U.S. 77, 80 (2004). In contrast to the

government’s limited power to restrict the speech of private

citizens, the government, as employer, has greater leeway to

control the speech of its employees to ensure discipline and

No. 23-1091 7

harmony in government operation. Waters v. Churchill, 511

U.S. 661, 671–72 (1994). The First Amendment requires us to

strike “a balance between the interests of the [employee], as a

citizen, in commenting upon matters of public concern and

the interest of the State, as an employer, in promoting the ef-

ficiency of the public services it performs through its employ-

ees.” Pickering v. Bd. of Educ. of Twp. High Sch. Dist. 205, 391

U.S. 563, 568 (1968).

The inquiry into whether a public employer’s personnel

decision infringed upon an employee’s First Amendment

rights involves several steps: “[P]ublic employees must pre-

sent evidence that (1) their speech was constitutionally pro-

tected; (2) they suffered a deprivation likely to deter free

speech; and (3) their speech was at least a motivating factor in

the employer’s actions.” Bless v. Cook Cnty. Sheriff’s Off., 9

F.4th 565, 571 (7th Cir. 2021). The parties do not dispute Hicks

satisfies the second and third elements. They disagree about

whether his Facebook posts were constitutionally protected,

so we focus on this first element.

To resolve the question of whether the First Amendment

protects Hicks’s speech, we apply the two-step Connick/Pick-

ering test. The first step asks whether the employee spoke “as

a citizen upon matters of public concern,” as opposed to “as

an employee upon matters only of personal interest.” Connick

v. Myers, 461 U.S. 138, 147 (1983). The parties do not dispute

that Hicks spoke as a citizen on matters of public concern. So,

we can proceed to the second step. Step two involves a bal-

ancing: It asks whether the employee’s interests in speaking

on a matter of public concern outweigh the government’s

8 No. 23-1091

interest in promoting effective and efficient public services. 1

Pickering, 391 U.S. at 568.

But before diving into step two (Pickering balancing), we

address a point of law. The parties cite Harnishfeger v. United

States, 943 F.3d 1105 (7th Cir. 2019), for the proposition that

we can take an alternate route to Pickering balancing. Harnish-

feger explained that a court can arrive at balancing not only if

an employee speaks as a citizen on a matter of public concern

as required by Connick, but also if an employee shows that his

speech was neither at work nor about work and the employee

did not take deliberate steps linking himself and his speech to

his employer. Harnishfeger, 943 F.3d at 1113–14. Harnishfeger

stated that this “different path to Pickering [balancing] is avail-

able under United States v. National Treasury Employees Union,

513 U.S. 454 (1995) (“NTEU”).” Harnishfeger, 943 F.3d at 1113.

NTEU explained, however, that NTEU applies to ex ante blan-

ket restrictions on speech, whereas Connick applies to “post hoc

analys[es]” of “isolated disciplinary actions” “taken in re-

sponse to actual speech,” which is what Hicks challenges in

1 Because it is a balancing test, the stronger the showing that the

speech touched on a matter of public concern, the greater the burden on

the government to show that its interests should prevail. See Craig v. Rich

Twp. High Sch. Dist. 227, 736 F.3d 1110, 1111–21 (7th Cir. 2013). Hicks ar-

gues that his posts were “entitled to the highest rung of First Amendment

protection” because, on appeal, he has explained the posts’ political and

religious underpinnings. Defendants argue his Facebook posts “touched

upon matters of public concern in only a most limited sense,” if at all. But

we do not consider the NPR, New York Times, and Newsweek articles

that Hicks cites on appeal because Hicks failed to call the district court’s

attention to these facts. And it would not matter if we labeled his free

speech interests as substantial or limited: As discussed below, the govern-

ment’s interests are weighty enough to outweigh his right to speak freely

either way.

No. 23-1091 9

this case. NTEU, 513 U.S. at 467–68, 475 n.21. Nonetheless, we

could not walk the alternative path Harnishfeger sets out even

if we tried: Hicks did take deliberate steps linking himself and

his speech to the Department, as evidenced by his decision to

include his occupation and a photo of himself in Department

uniform on his publicly accessible Facebook page. Because

this aspect of the Harnishfeger formulation is not met, this case

does not qualify to proceed to Pickering balancing via the

Harnishfeger framework, though it can via Connick (which,

again, asks only if an employee speaks as a citizen on a matter

of public concern). And even if we could take the Harnishfeger

route, we—like the Harnishfeger court—arrive at the same

place: Pickering balancing.

Let’s return to the task of applying the Connick/Pickering

test to the facts before us. Again, step two requires a balanc-

ing: do the employee’s interests in speaking on a matter of

public concern outweigh the government’s interest in pro-

moting effective and efficient public services? This second

part of the test contemplates a fact-specific inquiry into sev-

eral interrelated factors:

(1) whether the speech would create problems

in maintaining discipline or harmony among

co-workers; (2) whether the employment rela-

tionship is one in which personal loyalty and

confidence are necessary; (3) whether the

speech impeded the employee’s ability to per-

form her responsibilities; (4) the time, place and

manner of the speech; (5) the context in which

the underlying dispute arose; (6) whether the

matter was one on which debate was vital to in-

formed decisionmaking; and (7) whether the

10 No. 23-1091

speaker should be regarded as a member of the

general public.

Bonds v. Milwaukee Cnty., 207 F.3d 969, 981 (7th Cir. 2000). We

cannot “merely count how many factors line up on each

side—one factor of great weight may offset several which lean

slightly in the other direction.” Volkman v. Ryker, 736 F.3d

1084, 1092 (7th Cir. 2013).

In balancing these interests, we must also consider the

“nature of the employer-employee relationship in the para-

military context of a correctional center.” Id. Law enforcement

agencies tasked with protecting and maintaining correctional

centers function as “paramilitary organizations” charged

with maintaining public safety and order. Id. (citation omit-

ted). As a result, they receive more latitude in their discipline

decisions and personnel regulations than an ordinary govern-

ment employer. Id. “In such contexts, we afford considerable

deference to the government employer’s assessment of the

risks that employee speech creates.” Id. (cleaned); Lalowski v.

City of Des Plaines, 789 F.3d 784, 793 (7th Cir. 2015) (“We have

recognized that there is a particularly urgent need for close

teamwork among those involved in the high stakes’ field of

law enforcement. Speech that might not interfere with work

in an environment less dependent on order, discipline, and

esprit de corps could be debilitating to a police force.”

(cleaned)).

A government employer need not prove that the em-

ployee’s speech actually disrupted efficiency; rather, the em-

ployer’s burden is to show “‘the potential disruptiveness’ of

the employee’s speech.” Lalowski, 789 F.3d at 792–93 (citations

omitted). The employer is not required to wait until opera-

tions actually disintegrate if immediate action might prevent

No. 23-1091 11

such disintegration. Id.; Connick, 461 U.S. at 152 (“[W]e do not

see the necessity for an employer to allow events to unfold to

the extent that the disruption of the office and the destruction

of working relationships is manifest before taking action.”);

Waters, 511 U.S. at 673 (plurality opinion) (granting “substan-

tial weight to government employers’ reasonable predictions

of disruption”).

We conclude that the Department’s interest in efficiency

and preventing disruption outweighed any interest Hicks

had in sharing the five posts on his Facebook profile.

First, Hicks’s Facebook activity had the potential to inter-

fere with Department operations, discipline, and relation-

ships, for three reasons. One, by espousing disparaging views

about groups that may be present in the prison or staff popu-

lation, Hicks “positioned himself in opposition to the goals of

his employer.” Lalowski, 789 F.3d at 791. This is because the

Department must police the populations Hicks targeted and

it might employ members of the same populations to do the

policing. Even if members of these populations had not yet

learned of his posts, “the potential for disruption is readily

apparent.” Id. at 791–92. Two, the adverse public exposure

prompted by the news article threatened to erode community

trust and impair its operations. Indeed, the article referred to

the posts as “offensive” and “Islamophobic,” and the article—

and therefore the posts—remains publicly available to this

day. Three, the Department has a reasonable, well-founded

concern about legal exposure from derogatory social media

posts by employees. Recall that the Department was already

defending a lawsuit on this front and the court in that case

concluded the derogatory social media posts reflected the

12 No. 23-1091

severity and pervasiveness of the Department’s hostility to-

ward transgender inmates.

Hicks argues that this first factor—the potential to inter-

fere with Department operations, discipline, and relation-

ships—favors him and, if we conclude otherwise, we green-

light what he asserts are post hoc justifications by the Depart-

ment for the disciplinary decision. We disagree. The record

shows that, contrary to Hicks’s assertion, the news article

caused the Department’s concern about negative public expo-

sure. The article set several events in motion, including Jef-

freys’s email reminding staff to observe the code of conduct

while using social media, and the internal investigation that

resulted in a report explaining that Hicks’s posts (nearly all of

which featured in the article) “reflect negatively on the

[D]epartment.” Also contrary to Hicks’s assertion, the Depart-

ment did not need to experience actual disruption before dis-

ciplining him. The potential for disruption was enough. See

id. at 792–93. Nor do we find persuasive Hicks’s contention

that the Facebook posts were not “inherently” or “terribly of-

fensive.” “[C]ourts look to the facts as the employer reasona-

bly found them to be,” not as viewed by the employee, a

court, or a jury. Waters, 511 U.S. at 677 (emphasis omitted).

The record leaves us with no doubt that the Department rea-

sonably found the posts harmed its reputation and threatened

its operations. We therefore accord substantial weight to the

Department’s interest in preventing Hicks from causing fur-

ther disruption.

Second, the employment relationship between Hicks and

the Department required loyalty and confidence. Hicks’s

prayer to participate in a government overthrow and dispar-

aging populations to which staff members may belong

No. 23-1091 13

conflict with the Department’s expectation of loyalty from

employees, which is especially important in a paramilitary

context. This factor favors Defendants, too.

Third, Hicks’s posts conflicted with his responsibilities as

a supervisor. “Supervisors are tasked with enforcing rules

and regulations.” Volkman, 736 F.3d at 1092. When a supervi-

sor expresses interest in participating in a government over-

throw, he undermines the staff and inmates’ respect for rules

and chain-of-command. Id. And because the posts support the

conclusion that Hicks is not an impartial decisionmaker, staff

and inmates may grow wary of working with him or follow-

ing his orders. See, e.g., Craig, 736 F.3d at 1113 (explaining fe-

male students would be especially reluctant to seek counsel-

ing services from a public employee who wrote a book ex-

pressing sexist views). Alternatively, his role as a supervisor

may encourage supervisees to carry bias further down the

chain of command. See Weicherding v. Riegel, 160 F.3d 1139,

1143 (7th Cir. 1998) (concluding, in a case concerning tele-

vised support of the Ku Klux Klan, that “[the plaintiff’s] posi-

tion as sergeant, an intermediate management position at [the

prison], [] weighs in favor of the defendants, because manag-

ers set an example for the subordinate employees”). We need

not second-guess the Department’s conclusion that the exam-

ple Hicks set through his conduct as a supervisor jeopardized

effective operations. This conflict between Hicks’s managerial

position and his Facebook activity also weighs in the Depart-

ment’s favor.

Fourth, the time, place, and manner of the speech do not

help Hicks. Although Hicks posted the content in question

while off duty, his activity did not constitute, as he argues,

“private” messages: he set his Facebook profile such that

14 No. 23-1091

anyone could view the five posts, and any member of the pub-

lic or Department could have come across them. Further, even

assuming—we think generously—that Hicks meant to com-

municate something of value to public discourse, the deroga-

tory language and images Hicks used did more than neces-

sary to contribute to the conversation. Lalowski, 789 F.3d at 792

(noting the manner of the employee’s speech weighed against

the employee because “[h]is words and deeds were abusive

and degrading,” “going far beyond what was necessary to

communicate his displeasure with [the protesters’] meth-

ods”). This factor also goes to the Department.

Finally, visitors to Facebook could not regard Hicks as a

member of the general public when he posted the content at

issue here. He made sure of that by listing his position as a

corrections sergeant, listing the Department as his employer,

and posting a photo of himself in uniform. These things made

it easy to identify Hicks as a Department employee—just as

the news reporter did—and created the risk that someone

would associate his posts with the Department. Id. at 793 (con-

cluding the plaintiff did not speak as a member of the public

because he represented himself as an off-duty police officer

and “made sure demonstrators remembered him as a police

officer”); see Coady v. Steil, 187 F.3d 727, 733 (7th Cir. 1999)

(finding that an off-duty firefighter who displayed a political

sign on his car was not “speaking as a firefighter” because

“there was apparently nothing on [his] car which identified

him as a firefighter”). This factor further tips the scale in the

Department’s favor.

In sum, even if we assume the posts contributed to in-

formed debate, we conclude the Department’s interest in

workplace efficiency and preventing disruption outweighed

No. 23-1091 15

any interest Hicks had in commenting as he did. Having con-

cluded that the Connick/Pickering test favors the Department,

we hold that the district court properly granted summary

judgment in favor of the Defendants on the First Amendment

retaliation claim.

B. Fourteenth Amendment

We now turn to Hicks’s as-applied Fourteenth Amend-

ment challenge to the Department’s code of conduct.

“It is a basic principle of due process that an enactment is

void for vagueness if its prohibitions are not clearly defined.”

Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). But regu-

lations “are not automatically invalidated as vague simply be-

cause difficulty is found in determining whether certain mar-

ginal offenses fall within their language.” United States v. Nat’l

Dairy Prods. Corp., 372 U.S. 29, 32 (1963). The question whether

a regulation is unconstitutionally vague is determined by

whether it is crafted with sufficient clarity to “give the person

of ordinary intelligence a reasonable opportunity to know

what is prohibited.” Grayned, 408 U.S. at 108.

Unlike laws applicable to the general public, “the govern-

ment acting in the role of employer enjoys much more latitude

in crafting reasonable work regulations for its employees.”

Greer v. Amesqua, 212 F.3d 358, 369 (7th Cir. 2000). Thus, a code

of conduct for public employees is impermissibly vague only

if it fails to “convey adequate warning” to “reasonable em-

ployee[s]” as to a “sufficiently define[d] [ ] range of inappro-

priate conduct” that may result in discipline. Id.

Hicks cannot credibly assert that the code of conduct is im-

permissibly vague as applied to his social media activity. His

Facebook posts so contradict his role as a corrections sergeant

16 No. 23-1091

that no reasonable officer could claim confusion about the

code of conduct’s application. It is one thing to participate in

controversial public discussions about politics, religion, race,

culture and sexuality; it is another to use derogatory language

and stereotypes about the very populations an officer is

tasked with safeguarding and supervising. And the code of

conduct provides more than adequate warning to a reasona-

ble employee charged with protecting the public that posting

language suggesting joyful anticipation of a government

overthrow or civil war is “unbecoming” of the employee and

“may reflect unfavorably” on the Department.

Because the code of conduct is not unconstitutionally

vague as applied to a supervising officer who posts the con-

tent at issue here, we affirm the district court’s judgment on

the Fourteenth Amendment due process claim.

III

For these reasons, the judgment of the district court is

AFFIRMED.