Free Speech Claim by Government Employee Fired for Posts Complaining About 2020 St. Louis Riots Can Go Forward

From Winterbauer v. City of St. Louis, decided yesterday by Judge Maria Lanahan (E.D. Mo.):

Christina Winterbauer was a civilian employee of the St. Louis Metropolitan Police Division, Department of Public Safety where she worked as a dispatcher. During the 2020 Black Lives Matter protests, Winterbauer made a private Facebook post commentating on the situation in St. Louis. The post read:

And so it begins! Got a call yesterday on my day off, was told when I go back to work Tuesday, we will be on Mandatory 12 hours shifts, All because a bunch of Animals don't know when enough is enough!! This is my 3rd time working through Protesting & Riots since Ferguson 6 years ago!! I'm tired of my life being turned upside down, my work schedule changing (not by my choice), plans I had made changing, because these Mofo's are out of control! I suffer from anxiety & it has been really bad since all this protesting started here, worrying about our Officer's & my Co-Worker's getting to & from work safety! I'm afraid to drive to work due to not knowing if I'm going to run into a protest or being shot at because I'm white, yes they are targeting us white people because of the color of our skin! With that being said, to all of you supporters of this Crime, Looting & Destruction going on in our City & others, I hope you're happy with it all & screw you as well, now I'm angry because once again my life is now effected from this shit! This is how I feel about all of it so if you don't like it, too bad, press the unfriend button, because I promise you I will not lose sleep over it!!

I ask you to pray for all of us First Responders through this, that we all make it to work safely & back home to our families safely! Pray for this madness to end, watch your backs, be aware or your surroundings, because this is some scary shit going on out on the streets!

God Bless us all!!!

The post was subsequently shared with local media by an anonymous third party. Winterbauer alleges that there was no internal backlash to her post, and that it did not disrupt the department. In response to the post, the Department terminated Winterbauer.

Winterbauer sued, and the court allowed her claim to go forward:

"Under Eighth Circuit precedent, we must proceed through a multi-step analysis to determine if [a plaintiff's] non-testimonial speech is entitled to First Amendment protection. First, we must 'determin[e] whether the employee spoke as a citizen on a matter of public concern.'" "If the answer is yes, then the possibility of a First Amendment claim arises." "Once the possibility of a First Amendment claim arises, the next question is whether Defendants have produced evidence to indicate the speech had an adverse impact on the efficiency of the employer's operations." "Where there is no evidence of disruption, resort to the Pickering factors is unnecessary because there are no government interests in efficiency to weigh against First Amendment interests." "Finally, 'if such an adverse impact is found, the court engages in the Pickering balancing inquiry.'" …

[1.] Winterbauer spoke as a private citizen on a matter of public concern.

It is undisputed that Winterbauer spoke as a private citizen rather than as a representative of the Department. The City contends that Winterbauer was speaking about her personal life rather than addressing a matter of public concern. "When the speech in question involves a matter of political, social or other concern to the community it is of public concern. Whether an employee's speech addresses a matter of public concern must be determined by the content, form, and context of a given statement."

The content of the speech concerns the impact of "the [then] ongoing civil unrest, protests, and riots following the death of George Floyd" on the City of St. Louis. While elements of the speech were personal (e.g., expressing her fear of being murdered by rioters and her displeasure at working long shifts to mitigate the damage caused by riots), these elements are examples of how a wider issue of public concern was impacting her as a member of the community. It would be absurd to hold that criticism of violent riots in a community does not address a matter of public concern.

This finding is supported by the context of the post. The Eighth Circuit ruled in Bresnahan v. City of St. Peters (8th Cir. 2023) that "[a]t the time Bresnahan sent the video, BLM protests were the subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public." So too here. The overall purpose of Winterbauer's post was to criticize the violence perpetrated by the Black Lives Matter movement, which is and was a matter of public concern.

[2.] The complaint does not allege facts which indicate that the speech had an adverse effect on efficiency.

Considering the complaint in the light most favorable to the plaintiff, the speech did not have an adverse effect on efficiency. Courts look to see if the speech "created workplace disharmony, impeded [ ] performance, … impaired working relationships, or otherwise had an adverse impact on the efficiency of the [governmental department's] operations." Here, Winterbauer alleges that, to her knowledge, the comments did not cause dissent or displeasure among her coworkers. She further alleges that the comments did not disrupt the workflow within the department, have an adverse effect on working relationships, or negatively impact the ability of her, or her colleagues, to perform their duties.

Rather, any displeasure at the comments was external to the department and arose only because a third party transmitted the speech to a broader audience than Winterbauer intended. Outsider complaints on their own (i.e., without a showing as to how they affected the government's ability to deliver public services) are insufficient to meet the adverse effect factor. See Melton v. City of Forrest City (8th Cir. 2025). Taking the allegations in the complaint as true, we can end our inquiry here….

Peter O. Bruntrager (Bruntrager & Billings, P.C.) represents plaintiff.