No Right to Post “Crass” Statements by Coast Guard Auxiliarist

The Seventh Circuit ruled yesterday that a Coast Guard Auxiliarist’s “Crass” Statements on social media are not protected by the First Amendment.

The case, Wenzler v. United States Coast Guard, arose when Coast Guard Auxiliary member James Wenzler posted a series of offensive statements on LinkedIn. After warning him, the Auxiliary suspended Wenzler, initiated formal disciplinary proceedings, and ultimately removed him from his position.

Wenzler sued, arguing that the Coast Guard retaliated against him for engaging in protected speech. The district court ruled for the Coast Guard, and the Seventh Circuit affirmed.

The court applied the familiar Connick/Pickering test for free speech for public employees. Under that two-part test, courts first ask if a public employee’s speech was on a matter of public concern. If not, the speech is unprotected. But if so, courts then balance the speaker’s interests “in commenting upon matters of public concern” against the government’s interest “in promoting the efficiency of the public services it performs through its employees.” Pickering v. Board of Education (1968).

The court assumed that Wenzler’s speech touched on matters of public concern. It then ruled that the Auxiliary’s interests outweighed Wenzler’s:

Given the uncontested facts before us, the Auxiliary could have reasonably determined that Wenzler’s speech and actions would be detrimental to the Auxiliary and its reputation. He served in a leadership role, and the example he set matters. The Auxiliary could have reasonably expected that other Auxiliarists would be less likely to work with Wenzler, or at least to work well with him, following his derogatory comments and attacks on others. Wenzler’s statements alarmed at least two members of the public enough to notify the Auxiliary. On this record, the Auxiliary could have been justifiably concerned about its negative impacts to its reputation and, in turn, its recruiting and retention. In the long run, its ability to serve the public might suffer, or at least the Auxiliary could have reasonably believed so.

The district court properly found that the Coast Guard’s reasonable determination that Wenzler’s speech could undermine the Auxiliary’s mission outweighed his interest in the statements he made.