Steven Melton v. City of Forrest City, Arkansas

United States Court of Appeals

For the Eighth Circuit

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No. 23-3398

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Steven Melton

Plaintiff - Appellant

v.

City of Forrest City, Arkansas; Cedric Williams, In his official and individual

capacities

Defendants - Appellees

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Douglass Leadership Institute; The Radiance Foundation; Speak for Life

Amici on Behalf of Appellant(s)

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Appeal from United States District Court

for the Eastern District of Arkansas - Northern

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Submitted: October 30, 2024

Filed: August 13, 2025

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Before SMITH, ERICKSON, and STRAS, Circuit Judges.

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STRAS, Circuit Judge.

Does a Forrest City fireman who lost his job because he posted a provocative

image on his personal Facebook page have a First Amendment retaliation claim that

can get to a jury? We conclude that he does.

I.

Steven Melton is a pro-life, evangelical Christian. In June 2020, he reposted

a black-and-white image on Facebook that depicted a silhouette of a baby in the

womb with a rope around its neck. His intent was to convey that he was “anti-

abortion.”

Others did not view the image the same way. Two weeks after he posted it, a

retired fire-department supervisor complained to Melton that he thought it looked

like a noose around the neck of a black child. It upset him because the caption of

the image, “I can’t breathe!,” was associated with the protests surrounding George

Floyd’s death. Melton agreed to delete it immediately.

Deleting it was not enough for Mayor Cedric Williams, who called him into

his office the next day. Although Melton was “apologetic,” the mayor placed him

on administrative leave pending an investigation. After a single day reviewing

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Melton’s Facebook page and discussing the post with the current fire chief, two

retired firefighters, several attorneys, and a human-resources officer, the mayor

decided to fire Melton over the image’s “egregious nature.”

He was concerned about the “huge firestorm” it had created. Among other

things, the fire chief’s phone had been “blowing up,” “several” police officers had

become “very upset,” and the “phone lines” were jammed with calls from angry city-

council members and citizens. Some said that Melton “should not be a part of the . . .

fire department responding to calls.” A few even said that they did not want “him

coming to their house . . . for a medical call or fire emergency.” According to the

mayor, these complaints “threaten[ed] the City’s ability to administer public

services.”

Melton found out about the decision to fire him from the local news. In

response to a “media request,” Mayor Williams had issued a press release stating

that “[q]uestionable social[-]media posts” had led to his termination. It marked the

end of his “four and a half years” of “unblemished” service.

After a grievance failed to get Melton his job back, he brought a First

Amendment retaliation claim against Mayor Williams in both his individual and

official capacities. See 42 U.S.C. § 1983. He also included one against Forrest City

for what he alleged was an unwritten policy granting city officials unbridled

discretion to censor employee speech.

The parties filed cross-motions for summary judgment, which prompted the

district court to dismiss Melton’s case. See Fed. R. Civ. P. 56. Qualified immunity

shielded Mayor Williams in his individual capacity, and the lack of an unwritten

policy doomed the official-capacity and unbridled-discretion claims. He hopes to

revive his lawsuit on appeal.

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II.

We review the district court’s decision on cross-motions for summary

judgment de novo. See Couch v. Am. Bottling Co., 955 F.3d 1106, 1108 (8th Cir.

2020). “Summary judgment is appropriate when the evidence, viewed in a light

most favorable to the nonmoving party, shows no genuine issue of material fact

exists and the moving party is entitled to judgment as a matter of law.” Id. (citation

omitted). A genuine issue for trial exists when “a reasonable jury could return a

verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248 (1986).

A.

“As a general matter the First Amendment prohibits government officials

from subjecting an individual to retaliatory actions for engaging in protected

speech.” Nieves v. Bartlett, 587 U.S. 391, 398 (2019) (citation omitted); see Naucke

v. City of Park Hills, 284 F.3d 923, 927 (8th Cir. 2002) (“Retaliation by a

government actor in response to . . . an exercise of First Amendment rights forms a

basis for § 1983 liability.”). Melton’s position is that Mayor Williams is liable in

his individual capacity because he admitted that the Facebook post itself, and the

“firestorm” it created, was the reason for firing him. See Mayfield v. Mo. House of

Representatives, 122 F.4th 1046, 1052 (8th Cir. 2024). Evaluating this argument

requires us to consider qualified immunity, the availability of which depends on our

answers to two questions. “First, did [the mayor] violate a constitutional right?”

Molina v. City of St. Louis, 59 F.4th 334, 337 (8th Cir. 2023). And “[s]econd, was

the right clearly established?” Id. at 337–38.

The district court never made it past the first one. What was missing, in its

view, was “constitutionally protected [First Amendment] activity.” Naucke, 284

F.3d at 927−28 (citation omitted); see Molina, 59 F.4th at 338. The general rule is

that a statement expressing a viewpoint on a moral or political issue is protected

under the First Amendment, regardless of whether others find it offensive. See

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Packingham v. North Carolina, 582 U.S. 98, 104 (2017) (recognizing “social media”

as one of “the most important places” for the “exercise of First Amendment rights”).

Special rules apply, however, when the speaker is a public employee like Melton,

which is why the district court thought his post was unprotected. See Garcetti v.

Ceballos, 547 U.S. 410, 417, 419 (2006).

It asked the right questions, even if it ended up with the wrong answer. Public

employees “must,” according to the Supreme Court, “accept certain limitations on

[their] freedom,” id. at 418, because the government has valid “interests as an

employer in regulating the[ir] speech,” Connick v. Myers, 461 U.S. 138, 140 (1983).

Recognizing, however, that they “do not surrender all their First Amendment rights

by reason of their employment,” the Court has staked out a middle ground. Garcetti,

547 U.S. at 417 (emphasis added). Known as Pickering balancing, it requires

weighing the government’s interest “in promoting the efficiency of the public

services it performs through its employees” against the employee’s interest “in

commenting upon matters of public concern.” Pickering v. Bd. of Educ., 391 U.S.

563, 568 (1968). Courts weigh these interests on a post hoc basis, long after the

speech and the alleged retaliation have come and gone. It is no easy task.

Getting there even involves addressing a couple of threshold issues, one for

each side. For Melton, he can bring a claim for retaliation only if he was speaking

“as a citizen on a matter of public concern.” Henry v. Johnson, 950 F.3d 1005, 1011

(8th Cir. 2020) (citation omitted). Then the focus shifts to the government employer

to establish that the speech “created workplace disharmony, impeded [Melton’s]

performance, . . . impaired working relationships,” or otherwise “had an adverse

impact on the efficiency of the [fire department’s] operations.” Id. at 1011–12

(citation omitted). Only if both are true will we do a full Pickering balancing and

weigh these interests against each other. See id. at 1011.

The record is clear on the first issue. Melton posted the image to his personal

page on his own time, and there is no dispute that race and abortion are matters of

“political, social, or other concern to the community.” Id. at 1012 (citation omitted);

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see Dobbs v. Jackson Women’s Health Org., 597 U.S. 215, 300 (2022) (noting that

abortion is a “matter[] of great social significance and moral substance”); Rankin v.

McPherson, 483 U.S. 378, 387 (1987) (“The inappropriate or controversial character

of a statement is irrelevant to the question whether it deals with a matter of public

concern.”). From there, the “possibility of a First Amendment claim ar[ose],”

Garcetti, 547 U.S. at 418, out of the “individual and public interest[]” in Melton’s

speech, id. at 430 (Souter, J., dissenting).

The record is more of a tossup on whether there was a negative impact on

Forrest City’s delivery of “public services.” Pickering, 391 U.S. at 468. Sometimes

a government employer will experience an actual disruption. Other times, it will

have a “reasonabl[e] belie[f]” in “the potential for disruption.” Washington v.

Normandy Fire Prot. Dist., 272 F.3d 522, 527 (8th Cir. 2001) (emphasis added).

Either is usually enough when the government entity is a public-safety organization.

See id. But when neither is present, there are “no government interests in efficiency

to weigh” and Pickering balancing “is unnecessary.” Henry, 950 F.3d at 1011

(citation omitted); see Mayfield, 122 F.4th at 1055 (“Defendants bear the burden of

putting the Pickering balancing test into play by submitting evidence of

disruption.”).

At best, the evidence of disruption is thin. As the district court pointed out,

everyone agrees “that there was no disruption of training at the fire department, or

of any fire service calls, because of the post or the controversy surrounding it.”

Instead, Mayor Williams argues that the “firestorm” itself is what “disrupted the

work environment.” Grantham v. Trickey, 21 F.3d 289, 295 n.4 (8th Cir. 1994).

“[S]everal” police officers and city-council members were upset and “phone lines

[were] jammed” with calls from concerned citizens. A few opposed Melton’s

continued employment as a firefighter and did not want him “coming to their

house . . . for a medical call or fire emergency.” These calls seemed to be the main

motivation for firing Melton.

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The problem is that there was no showing that Melton’s post had an impact

on the fire department itself. No current firefighter complained or confronted him

about it. Nor did any co-worker or supervisor refuse to work with him. Granting

summary judgment based on such “vague and conclusory” concerns, without more,

runs the risk of constitutionalizing a heckler’s veto. Sexton v. Martin, 210 F.3d 905,

912 (8th Cir. 2000); see Kincade v. City of Blue Springs, 64 F.3d 389, 398 (8th Cir.

1995) (holding that “bare allegations” that employee speech “caused the City

problems” and “affected . . . efficiency” were not enough to demonstrate disruption).

Enough outsider complaints could prevent government employees from speaking on

any controversial subject, even on their own personal time. See Bennett v. Metro.

Gov’t of Nashville & Davidson Cnty., 977 F.3d 530, 554 (6th Cir. 2020) (Murphy,

J., concurring). And all without a showing of how it actually affected the

government’s ability to deliver “public services”—here, fighting fires and protecting

public safety. Henry, 950 F.3d at 1011–12 (requiring “specificity” about how the

“speech at issue created workplace disharmony, impeded the plaintiff’s

performance, or impaired working relationships” (citation omitted)).

Much of what remained was predictive. Mayor Williams claimed, for

example, that “conveying racist messages against Black people [would] affect trust

between firefighters.” To provide a “reasonable prediction[]” sufficient to take the

case away from a jury, a decisionmaker must do more than make a vague statement

in response to a conditionally worded question about what could happen. Waters v.

Churchill, 511 U.S. 661, 673 (1994) (plurality opinion); see Burnham v. Ianni, 119

F.3d 668, 680 (8th Cir. 1997) (en banc). 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.”

Waters, 511 U.S. at 673 (plurality opinion).

What the district court should not have done was automatically give the

mayor’s belief “considerable judicial deference.” Shands v. City of Kennett, 993

F.2d 1337, 1345 (8th Cir. 1993). As one of our cases puts it, “we have never granted

any deference to a government supervisor’s bald assertions of harm based on

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conclusory hearsay and rank speculation.” Burnham, 119 F.3d at 680. Keep in mind

that, in addition to the lack of evidence supporting the mayor’s prediction, his brief

investigation could lead a reasonable jury to conclude that what he said masked the

true reason for Melton’s firing, which was a disagreement with the viewpoint

expressed in the image. See Waters, 511 U.S. at 673 (plurality opinion). The jury’s

role will be to resolve these factual disputes “through special interrogatories or

special verdict forms.” Shands, 993 F.2d at 1342. The district court can then decide,

based on “the jury’s factual findings,” whether Melton’s speech was protected. Id.

at 1342–43 (outlining the “general framework for analyzing claims by public

employees” of improper discharge “for exercising their right to free speech”).

If the First Amendment protects Melton’s speech, one last hurdle remains: any

constitutional violation must have been “clearly established.” Molina, 59 F.4th at

338. The jury’s findings will play a role in making that determination too.

Insufficient evidence of a disruption would be “fatal to the claim of qualified

immunity” because there would be no governmental interest to weigh. Belk v. City

of Eldon, 228 F.3d 872, 882 (8th Cir. 2000); see Washington, 272 F.3d at 527

(“Because the [employer’s] showing of actual or potential disruption is insufficient

to trigger the Pickering balancing test, the[] claim of qualified immunity fails.”);

Burnham, 119 F.3d at 680 (holding that the employer’s “failure to establish

workplace disruption . . . is fatal to his claim of qualified immunity under a

Pickering analysis”). If the jury finds sufficient evidence of disruption to get to

Pickering balancing, on the other hand, then “the asserted First Amendment right

[is] rarely considered clearly established.” Grantham, 21 F.3d at 293 (citation

omitted); cf. Sexton, 210 F.3d at 914 (holding that the constitutional violation was

clearly established despite having to conduct the Pickering balancing). Resolving

this issue will determine whether Melton’s retaliation claim can succeed. 1

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He brought one against Forrest City too, but it is liable only if Melton’s

dismissal can be tied to “municipal policy.” Monell v. Dep’t. of Soc. Servs., 436

U.S. 658, 691 (1978). Some evidence suggests that Mayor Williams effectively

exercised policymaking authority over personnel matters, but the district court never

addressed this fact-intensive question. If the court finds a First Amendment

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B.

One final loose end. Melton alleges that Forrest City continues to violate the

First Amendment by maintaining an “unwritten speech policy that gives unbridled

discretion to [the mayor] to scrutinize city employees’ speech.” Unbridled-

discretion claims are a special type of facial challenge available to individuals whose

ability to speak depends on government approval. See City of Lakewood v. Plain

Dealer Publ’g Co., 486 U.S. 750, 755–56 (1988). That is, they apply to prior

restraints designed to “suppress future speech.” Viewpoint Neutrality Now! v. Bd.

of Regents of Univ. of Minn., 109 F.4th 1033, 1043 (8th Cir. 2024); see City of

Lakewood, 486 U.S. at 757 (explaining the “evils” associated with “the power of

prior restraint”).

There is no suggestion that Forrest City employees require pre-approval to

post on their personal social-media pages. See Viewpoint Neutrality Now!, 109 F.4th

at 1043. On the contrary, Melton first posted the image on Facebook without asking,

the post stayed on his page for two weeks, and only then did Mayor Williams

discipline him. If an unwritten policy exists here, at most it allows Forrest City

officials to intervene later, once the speech is publicly available. Given that facial

challenges are “disfavored,” Victory Through Jesus Sports Ministry Found. v. Lee’s

Summit R-7 Sch. Dist., 640 F.3d 329, 337 (8th Cir. 2011), we decline to extend the

unbridled-discretion doctrine to cover after-the-fact actions taken against

government employees for their speech, which is already the domain of First

Amendment retaliation claims, see Viewpoint Neutrality Now!, 109 F.4th at 1038

(explaining that the doctrine is “inapposite” to a challenge to a “one-time decision”).

violation, it will then need to determine whether municipal policy led to the decision,

based on “state and local positive law, as well as custom or usage having the force

of law.” Felts v. Green, 91 F.4th 938, 942 (8th Cir. 2024) (quoting Jett v. Dallas

Indep. Sch. Dist., 491 U.S. 701, 737 (1989)); see Davison v. City of Minneapolis,

490 F.3d 648, 659–662 (8th Cir. 2007).

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III.

We accordingly reverse the grant of summary judgment on the First

Amendment retaliation claims against Mayor Williams and Forrest City, otherwise

affirm, and remand for further proceedings.

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