Court Upholds Dismissal of U.S. Coast Guard Auxiliary Officer for "Crass Statements on LinkedIn" "in Uniform"

From Wenzler v. U.S. Coast Guard, decided today by Seventh Circuit Judge Michael Scudder, joined by Judges Amy St. Eve and Joshua Kolar:

James Wenzler posted a series of crass statements on LinkedIn while serving as a member of the Coast Guard Auxiliary and depicting himself in uniform. The Auxiliary investigated, told him to stop, and removed him from its ranks after he failed to heed its warning….

James Wenzler joined the Coast Guard Auxiliary in 2007. He held various positions over the years, eventually becoming a Vice Flotilla Commander. Wenzler publicized his affiliation with the organization on LinkedIn. His profile depicted him in uniform and represented that he served as the Auxiliary's Branch Chief for Human Resources.

In May 2022, a member of the public complained to the Auxiliary about Wenzler's LinkedIn posts. One of the posts accused certain Supreme Court Justices of being racist, and another included a crude remark about the Girl Scouts.

Here are the details on the posts, from the district court opinion:

The first [post] was in response to a post congratulating Justice Ketanji Brown Jackson. Wenzler's responsive post read: "Another racist makes the court to join racist Sotom[a]yor and Kag[a]n. Great job America!" The second post was in response to a post commending a girl scout for writing a letter to the editor to complain about an announcement regarding boy and girl scouts that the writer deemed sexist. Wenzler's responsive post read: "Well if you are proving you are just having fun, then you are. To find something sexist is to show you are the sexist. Perhaps the Girl Scouts should actually accomplish something, but alas they just sell cookies."

Back to the Seventh Circuit opinion:

The Auxiliary's investigation resulted in District Commodore Harvey Randall issuing Wenzler a letter of caution. The letter directed Wenzler to remove from social media any photos of himself wearing his uniform and to delete any reference to positions in the Auxiliary. It also instructed Wenzler to confirm compliance with the directive.

Wenzler failed to comply. Indeed, on July 15, he emailed District Commodore Randall, stating, "I disagree with your fake Letter of Caution, and am going to file a complaint against you for your racist and bigoted action against me because I am White. I find your behavior reprehensible."

Wenzler then stayed the course. In August 2022, the Auxiliary found that his LinkedIn profile still depicted him in uniform and listed him as a Branch Chief in the Human Resources Directorate. The Auxiliary also discovered additional insensitive and insulting posts. For example, Wenzler had quipped that the President-elect of Northwestern University, who had just been diagnosed with cancer, did a "horrible job" at the University of Wisconsin—Madison, her former employer, and "end[ed] up with the physical results of what she was" there. A member of the public saw the post and reacted negatively, asking in the comments if the Auxiliary really had put Wenzler in charge of human resources—essentially questioning whether he was fit to serve as a leader.

When the Auxiliary followed up, Wenzler doubled down. He confirmed that he had no intention of adhering to the Auxiliary's social media directive. So the Auxiliary suspended him and began a formal disciplinary process, which resulted in the Coast Guard disenrolling Wenzler….

The court upheld the dismissal:

"[T]he First Amendment protects a public employee's right, in certain circumstances, to speak as a citizen addressing matters of public concern." Our analysis is the same whether the speaker is a volunteer for a government organization or a paid employee…. To determine whether speech is constitutionally protected, we apply the two-step Connick/Pickering test. First we ask whether the speech in question involved a matter of public concern, as opposed to a purely personal interest. If so, we balance the speaker's interest "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." …

Accepting that Wenzler's speech touched on matters of public concern, we focus only on balancing the parties' interests. On the facts before us, the Auxiliary's need for "discipline or harmony among co-workers" and continued "public confidence" dominate.

The nature of an organization informs the deference we give in determining whether its employees' speech will deleteriously impact the organizational mission. The parties have latched onto language in our precedent identifying certain organizations as "paramilitary" and thus entitled to greater deference in this assessment. These cases considered the discretion afforded to law enforcement agencies, correctional centers, and the like. And indeed we deferred to those types of organizations' "own assessment of the risks to security and discipline." But the deference in reasonably determining what type of conduct is detrimental comes from the nature of an organization and its mission. It does not stem from any separate test for whether an organization qualifies under a "paramilitary" label….

We are convinced that the Coast Guard Auxiliary deserves deference in assessing and responding to its members' speech when they hold themselves out as members of the organization while wearing its uniform…. "For command, control, and administrative purposes," Congress gave the Auxiliary a military-like hierarchy consisting of "a national board and staff …, districts, regions, divisions, flotillas, and other organizational elements and units." …

The Auxiliary's possible missions are substantial. As a constitutional matter, the President, as Commander in Chief, may direct the Commandant to request and authorize assistance from the Auxiliary. As a statutory matter, the Auxiliary may "assist the Coast Guard as authorized by the Commandant, in performing any Coast Guard function, power, duty, role, mission, or operation authorized by law." This includes the ability to "conduct a patrol of a waterway" if certain preconditions are met.

And while Auxiliarists may not "engage in direct law enforcement or military missions" or "enforce limited access areas," they "may advise the public regarding compliance with [a] limited access area." Auxiliarists may also serve as "unarmed opposition forces" during training exercises as well as "gather information and data for the development of Coast Guard, State, and local government contingency plans." Congress further recognized that some missions could place Auxiliarists at risk and therefore provided benefits to those who are "physically injured or die[ ] as a result of physical injury incurred while performing any duty" assigned to them by the Coast Guard.

For his part, Wenzler sees the Auxiliary in more limited terms, as only a volunteer "nonmilitary organization" where members elect their own leadership and may not carry weapons. He tells us that the Auxiliary is nothing more than a "government-sponsored fraternity." We cannot agree. By statute, Congress established the Auxiliary and made it a component of the Coast Guard and thus, at least indirectly, answerable to the Commandant of the Coast Guard.

Wenzler also contends that because the Auxiliary lacks the means to compel obedience from its members it should receive no deference in policing their speech. Here, too, we disagree. Even in the actual armed forces of the United States, earning the privilege to lead has always required buy-in from subordinates. Given its statutory scheme and enabling regulations, we are convinced that the Auxiliary deserves deference in its reasonable determinations of how its members' speech will impact its mission….

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 mattered. 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….

"[A] public employer may act based on potential disruption so long as its predictions are reasonable." … 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 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.

Robert Ying-Tsai Joynt and Leslie K. Herje of the U.S. Attorney's Office (W.D. Wis.) represent defendants.