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.

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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
1 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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