In the

United States Court of Appeals

For the Seventh Circuit ____________________ 

No. 23-1091 

GARY HICKS, 

Plaintiff-Appellant, 

v.

ILLINOIS DEPARTMENT OF CORRECTIONS, ET AL., 

Defendants-Appellees. 

____________________ 

Appeal from the United States District Court for the

Central District of Illinois. 

No. 3:20-cv-03099 — Sue E. Myerscough, Judge. 

____________________ 

ARGUED NOVEMBER 29, 2023 — DECIDED JULY 23, 2024 

____________________ 

Before RIPPLE, SCUDDER, and JACKSON-AKIWUMI, Circuit 

Judges. 

JACKSON-AKIWUMI, Circuit Judge. The Illinois Department 

of Corrections suspended corrections sergeant Gary Hicks for 

10 days after an internal investigation into his Facebook 

posts—posts a news article described as “Islamophobic” and 

“offensive.” The internal investigation concluded that Hicks 

violated Department policies banning “conduct that is unbecoming of a State employee or that may reflect unfavorably 
2 No. 23-1091 

on or impair operations of the Department.” Hicks sued the 

Department and various officials connected to the disciplinary process under 42 U.S.C. § 1983, alleging a First Amendment retaliation claim and an as-applied Fourteenth Amendment challenge to the Department’s policies. The district court 

granted summary judgment in favor of the defendants on 

both claims, and Hicks appeals.

We conclude that Hicks cannot sustain a First Amendment 

retaliation claim because the Department’s interest in managing its affairs outweighs the interest Hicks had in posting the 

content. Nor can Hicks sustain an as-applied Fourteenth 

Amendment challenge because someone in his supervisory 

position would not have to guess that their actions may be 

“unbecoming of,” “reflect unfavorably on,” “or impair operations of the Department.” We therefore affirm.

I 

A. Factual Background

On September 4, 2019, the Chicago Sun Times published 

an article accusing Illinois Department of Corrections employees of posting “offensive” and “Islamophobic” content 

on Facebook. One post included statements like, “abortion is 

murder,” “homosexuality is sin,” and “Allah is not god.” Another post listed “Things We Don’t See Jews Doing,” including “Flying Planes Into Buildings,” “Forcing Young Girls to 

Marry Old Men,” “Mutilating Female Genitalia,” “Trying to 

Dominate the World,” and “Trying to Destroy America.” A 

different post depicted a member of the United States House 

of Representatives, labeling her as “musslamic” and encouraging her arrest. Another post included a prayer: “Dear Lord, 

if there must be a civil war or a government overthrow, please 
No. 23-1091 3

let it happen before I am dead or too old to fight in it. Amen.” 

The Department later learned of a fifth post that the news article did not discuss. This post depicted a different United 

States Representative in a sombrero, referred to her surname 

as the “Mexican word of the day,” and encouraged her to 

leave “if [she] don’t like the USA.”

The article identified Gary Hicks as the employee behind 

the first four posts described above. Indeed, at the time the 

article ran, Hicks maintained a Facebook profile. He made his 

profile publicly accessible; anyone could view its content. 

And on his profile, he listed his occupation as “Corrections 

Sergeant at Illinois Department of Corrections” and shared a 

photo of himself in Department uniform.

Sometime before the Chicago Sun Times published the article, a reporter contacted the Department’s public information officer to discuss the Facebook posts. The day after the 

article ran, Rob Jeffreys, Director of the Department, sent an 

email to all staff reminding them to follow the Department’s 

code of conduct while using social media. Jeffreys would later 

explain that he sent this email in response to his concern about 

litigation stemming from Department employees “posting 

things derogatory about the people we have in custody . . . . 

along the lines of religion, race, [and] sexuality.” At the time, 

an inmate named Tay Tay led a class of transgender inmates 

in a lawsuit against the Department for deliberate indifference to harassment and discrimination. The district court in 

the Tay litigation would later reference Facebook posts by Department employees other than Hicks when entering a preliminary injunction against the Department. The Tay court 

found the employees’ posts “reflect[ed] ignorance, sexism, 

and racism,” and that a “deep-seeded culture of ignorance, 
4 No. 23-1091 

harassment, and discrimination” existed within the Department.

The media attention prompted Josh Cheek, a Department 

investigator, to begin an internal investigation into Hicks’s social media posts. Investigator Cheek interviewed Hicks, who 

admitted to the posts and explained they reflected his personal political and religious views. Hicks said his views never 

impacted his work with the Department.

Investigator Cheek concluded that the social media posts 

violated the code of conduct. The code requires “employees 

to conduct themselves in a professional manner and, whether 

on duty or not, not engage in conduct unbecoming of a State 

employee or that may reflect unfavorably on or impair operations of the Department.” Beyond summarizing the news article and what Hicks said when interviewed, Investigator 

Cheek’s two-page final report did not say much. The report 

asserted that “the posts do reflect negatively on the [D]epartment as well as the [D]epartment[’]s overall mission” and 

charged Hicks with violating the Department’s code of conduct. The Department informed Hicks of the charges.

On October 15, 2019, the Department convened an Employee Review Board Hearing to give Hicks an opportunity 

to respond to the report. At the hearing, the hearing officer 

read the charges and heard statements from Hicks, his Union 

Representative, and a Management Representative. Hicks offered no witnesses other than himself, saying he did not intend the posts to offend anyone. The hearing officer concluded Hicks violated the code of conduct and recommended 

a 10-day suspension. 
No. 23-1091 5

Both Jeffreys, the Department’s Director, and John Eilers, 

in a dual role as Chief of Operations and temporary Chief of 

Staff, approved the 10-day suspension, effective November 4 

through November 14, 2019. This was the first and only time 

the Department disciplined Hicks during his 18 years of employment.

B. Procedural History

Hicks sued the Department, Jeffreys, Eilers, and three 

other officials (collectively, “Defendants”), alleging violations 

of his First Amendment free speech rights and Fourteenth 

Amendment due process rights.

The district court entered summary judgment for Defendants on both claims. The court held Hicks’s suspension did 

not violate the First Amendment because his posts were not 

on matters of public concern, he took deliberate steps to link 

himself and his posts to his government employment, and the 

Department’s interest as an employer outweighed his interest 

in speaking. Alternatively, the court held, qualified immunity 

shielded Defendants from the First Amendment challenge because clearly established law does not provide the right to 

share such posts publicly while identifying oneself as a Department employee. The district court granted summary 

judgment to Defendants on the Fourteenth Amendment due 

process claim on qualified immunity grounds, explaining that 

the law does not clearly establish that the Department’s standards were impermissibly vague as applied to Hicks’s Facebook activity.

This appeal followed.
6 No. 23-1091 

II 

Hicks raises several issues on appeal: (1) whether the Department violated his First Amendment rights by suspending 

him because of his Facebook posts; (2) whether the Department’s code of conduct violated the Fourteenth Amendment 

because it is impermissibly vague as applied to him; and (3) 

whether the individual Defendants are entitled to qualified 

immunity for any unconstitutional acts they may have committed. We review these questions de novo, and must reverse 

the district court’s summary judgment decision if we decide 

that a reasonable jury could have rendered a verdict in favor 

of Hicks. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 

(1986). 

We conclude that the First and Fourteenth Amendment 

claims are without merit. This also means we need not reach 

the qualified immunity question.

A. First Amendment

As a general matter, protecting the public’s interest in having citizens speak about and debate matters of public concern 

“lies at the heart of the First Amendment.” Lane v. Franks, 573 

U.S. 228, 236 (2014). 

But to resolve this appeal, we must consider the First 

Amendment rights of a specific group: public employees. 

Public employees do not sign away their free speech rights 

when answering the call to public service; at the same time, 

public employees’ rights to free speech are not absolute. City 

of San Diego v. Roe, 543 U.S. 77, 80 (2004). In contrast to the 

government’s limited power to restrict the speech of private 

citizens, the government, as employer, has greater leeway to 

control the speech of its employees to ensure discipline and 
No. 23-1091 7

harmony in government operation. Waters v. Churchill, 511 

U.S. 661, 671–72 (1994). The First Amendment requires us to 

strike “a balance between the interests of the [employee], as a 

citizen, in commenting upon matters of public concern and 

the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Pickering v. Bd. of Educ. of Twp. High Sch. Dist. 205, 391 

U.S. 563, 568 (1968). 

The inquiry into whether a public employer’s personnel 

decision infringed upon an employee’s First Amendment 

rights involves several steps: “[P]ublic employees must present evidence that (1) their speech was constitutionally protected; (2) they suffered a deprivation likely to deter free 

speech; and (3) their speech was at least a motivating factor in 

the employer’s actions.” Bless v. Cook Cnty. Sheriff’s Off., 9 

F.4th 565, 571 (7th Cir. 2021). The parties do not dispute Hicks 

satisfies the second and third elements. They disagree about 

whether his Facebook posts were constitutionally protected, 

so we focus on this first element.

To resolve the question of whether the First Amendment 

protects Hicks’s speech, we apply the two-step Connick/Pickering test. The first step asks whether the employee spoke “as 

a citizen upon matters of public concern,” as opposed to “as 

an employee upon matters only of personal interest.” Connick 

v. Myers, 461 U.S. 138, 147 (1983). The parties do not dispute 

that Hicks spoke as a citizen on matters of public concern. So, 

we can proceed to the second step. Step two involves a balancing: It asks whether the employee’s interests in speaking 

on a matter of public concern outweigh the government’s 
8 No. 23-1091 

interest in promoting effective and efficient public services.1

Pickering, 391 U.S. at 568.

But before diving into step two (Pickering balancing), we 

address a point of law. The parties cite Harnishfeger v. United 

States, 943 F.3d 1105 (7th Cir. 2019), for the proposition that

we can take an alternate route to Pickering balancing. Harnishfeger explained that a court can arrive at balancing not only if 

an employee speaks as a citizen on a matter of public concern 

as required by Connick, but also if an employee shows that his

speech was neither at work nor about work and the employee 

did not take deliberate steps linking himself and his speech to 

his employer. Harnishfeger, 943 F.3d at 1113–14. Harnishfeger

stated that this “different path to Pickering [balancing] is available under United States v. National Treasury Employees Union, 

513 U.S. 454 (1995) (“NTEU”).” Harnishfeger, 943 F.3d at 1113. 

NTEU explained, however, that NTEU applies to ex ante blanket restrictions on speech, whereas Connick applies to “post hoc 

analys[es]” of “isolated disciplinary actions” “taken in response to actual speech,” which is what Hicks challenges in 

1 Because it is a balancing test, the stronger the showing that the 

speech touched on a matter of public concern, the greater the burden on 

the government to show that its interests should prevail. See Craig v. Rich 

Twp. High Sch. Dist. 227, 736 F.3d 1110, 1111–21 (7th Cir. 2013). Hicks argues that his posts were “entitled to the highest rung of First Amendment 

protection” because, on appeal, he has explained the posts’ political and 

religious underpinnings. Defendants argue his Facebook posts “touched 

upon matters of public concern in only a most limited sense,” if at all. But 

we do not consider the NPR, New York Times, and Newsweek articles 

that Hicks cites on appeal because Hicks failed to call the district court’s 

attention to these facts. And it would not matter if we labeled his free 

speech interests as substantial or limited: As discussed below, the government’s interests are weighty enough to outweigh his right to speak freely

either way.
No. 23-1091 9

this case. NTEU, 513 U.S. at 467–68, 475 n.21. Nonetheless, we 

could not walk the alternative path Harnishfeger sets out even 

if we tried: Hicks did take deliberate steps linking himself and 

his speech to the Department, as evidenced by his decision to 

include his occupation and a photo of himself in Department 

uniform on his publicly accessible Facebook page. Because 

this aspect of the Harnishfeger formulation is not met, this case 

does not qualify to proceed to Pickering balancing via the

Harnishfeger framework, though it can via Connick (which, 

again, asks only if an employee speaks as a citizen on a matter 

of public concern). And even if we could take the Harnishfeger

route, we—like the Harnishfeger court—arrive at the same 

place: Pickering balancing.

Let’s return to the task of applying the Connick/Pickering

test to the facts before us. Again, step two requires a balancing: do the employee’s interests in speaking on a matter of 

public concern outweigh the government’s interest in promoting effective and efficient public services? This second 

part of the test contemplates a fact-specific inquiry into several interrelated factors:

(1) whether the speech would create problems 

in maintaining discipline or harmony among 

co-workers; (2) whether the employment relationship is one in which personal loyalty and 

confidence are necessary; (3) whether the 

speech impeded the employee’s ability to perform her responsibilities; (4) the time, place and 

manner of the speech; (5) the context in which 

the underlying dispute arose; (6) whether the 

matter was one on which debate was vital to informed decisionmaking; and (7) whether the 
10 No. 23-1091 

speaker should be regarded as a member of the 

general public.

Bonds v. Milwaukee Cnty., 207 F.3d 969, 981 (7th Cir. 2000). We 

cannot “merely count how many factors line up on each 

side—one factor of great weight may offset several which lean 

slightly in the other direction.” Volkman v. Ryker, 736 F.3d 

1084, 1092 (7th Cir. 2013). 

In balancing these interests, we must also consider the 

“nature of the employer-employee relationship in the paramilitary context of a correctional center.” Id. Law enforcement 

agencies tasked with protecting and maintaining correctional 

centers function as “paramilitary organizations” charged 

with maintaining public safety and order. Id. (citation omitted). As a result, they receive more latitude in their discipline 

decisions and personnel regulations than an ordinary government employer. Id. “In such contexts, we afford considerable 

deference to the government employer’s assessment of the 

risks that employee speech creates.” Id. (cleaned); Lalowski v. 

City of Des Plaines, 789 F.3d 784, 793 (7th Cir. 2015) (“We have 

recognized that there is a particularly urgent need for close 

teamwork among those involved in the high stakes’ field of 

law enforcement. Speech that might not interfere with work 

in an environment less dependent on order, discipline, and 

esprit de corps could be debilitating to a police force.”

(cleaned)).

A government employer need not prove that the employee’s speech actually disrupted efficiency; rather, the employer’s burden is to show “‘the potential disruptiveness’ of 

the employee’s speech.” Lalowski, 789 F.3d at 792–93 (citations 

omitted). The employer is not required to wait until operations actually disintegrate if immediate action might prevent 
No. 23-1091 11

such disintegration. Id.; Connick, 461 U.S. at 152 (“[W]e do not 

see the necessity for an employer to allow events to unfold to 

the extent that the disruption of the office and the destruction 

of working relationships is manifest before taking action.”); 

Waters, 511 U.S. at 673 (plurality opinion) (granting “substantial weight to government employers’ reasonable predictions 

of disruption”). 

We conclude that the Department’s interest in efficiency 

and preventing disruption outweighed any interest Hicks 

had in sharing the five posts on his Facebook profile. 

First, Hicks’s Facebook activity had the potential to interfere with Department operations, discipline, and relationships, for three reasons. One, by espousing disparaging views

about groups that may be present in the prison or staff population, Hicks “positioned himself in opposition to the goals of 

his employer.” Lalowski, 789 F.3d at 791. This is because the 

Department must police the populations Hicks targeted and 

it might employ members of the same populations to do the 

policing. Even if members of these populations had not yet 

learned of his posts, “the potential for disruption is readily 

apparent.” Id. at 791–92. Two, the adverse public exposure 

prompted by the news article threatened to erode community 

trust and impair its operations. Indeed, the article referred to 

the posts as “offensive” and “Islamophobic,” and the article—

and therefore the posts—remains publicly available to this 

day. Three, the Department has a reasonable, well-founded 

concern about legal exposure from derogatory social media 

posts by employees. Recall that the Department was already 

defending a lawsuit on this front and the court in that case 

concluded the derogatory social media posts reflected the 
12 No. 23-1091 

severity and pervasiveness of the Department’s hostility toward transgender inmates.

Hicks argues that this first factor—the potential to interfere with Department operations, discipline, and relationships—favors him and, if we conclude otherwise, we greenlight what he asserts are post hoc justifications by the Department for the disciplinary decision. We disagree. The record 

shows that, contrary to Hicks’s assertion, the news article 

caused the Department’s concern about negative public exposure. The article set several events in motion, including Jeffreys’s email reminding staff to observe the code of conduct

while using social media, and the internal investigation that 

resulted in a report explaining that Hicks’s posts (nearly all of 

which featured in the article) “reflect negatively on the 

[D]epartment.” Also contrary to Hicks’s assertion, the Department did not need to experience actual disruption before disciplining him. The potential for disruption was enough. See

id. at 792–93. Nor do we find persuasive Hicks’s contention 

that the Facebook posts were not “inherently” or “terribly offensive.” “[C]ourts look to the facts as the employer reasonably found them to be,” not as viewed by the employee, a 

court, or a jury. Waters, 511 U.S. at 677 (emphasis omitted). 

The record leaves us with no doubt that the Department reasonably found the posts harmed its reputation and threatened 

its operations. We therefore accord substantial weight to the 

Department’s interest in preventing Hicks from causing further disruption.

Second, the employment relationship between Hicks and 

the Department required loyalty and confidence. Hicks’s 

prayer to participate in a government overthrow and disparaging populations to which staff members may belong
No. 23-1091 13

conflict with the Department’s expectation of loyalty from 

employees, which is especially important in a paramilitary 

context. This factor favors Defendants, too.

Third, Hicks’s posts conflicted with his responsibilities as 

a supervisor. “Supervisors are tasked with enforcing rules 

and regulations.” Volkman, 736 F.3d at 1092. When a supervisor expresses interest in participating in a government overthrow, he undermines the staff and inmates’ respect for rules 

and chain-of-command. Id. And because the posts support the 

conclusion that Hicks is not an impartial decisionmaker, staff 

and inmates may grow wary of working with him or following his orders. See, e.g., Craig, 736 F.3d at 1113 (explaining female students would be especially reluctant to seek counseling services from a public employee who wrote a book expressing sexist views). Alternatively, his role as a supervisor 

may encourage supervisees to carry bias further down the 

chain of command. See Weicherding v. Riegel, 160 F.3d 1139, 

1143 (7th Cir. 1998) (concluding, in a case concerning televised support of the Ku Klux Klan, that “[the plaintiff’s] position as sergeant, an intermediate management position at [the 

prison], [] weighs in favor of the defendants, because managers set an example for the subordinate employees”). We need 

not second-guess the Department’s conclusion that the example Hicks set through his conduct as a supervisor jeopardized 

effective operations. This conflict between Hicks’s managerial 

position and his Facebook activity also weighs in the Department’s favor.

Fourth, the time, place, and manner of the speech do not 

help Hicks. Although Hicks posted the content in question 

while off duty, his activity did not constitute, as he argues, 

“private” messages: he set his Facebook profile such that 
14 No. 23-1091 

anyone could view the five posts, and any member of the public or Department could have come across them. Further, even 

assuming—we think generously—that Hicks meant to communicate something of value to public discourse, the derogatory language and images Hicks used did more than necessary to contribute to the conversation. Lalowski, 789 F.3d at 792 

(noting the manner of the employee’s speech weighed against 

the employee because “[h]is words and deeds were abusive 

and degrading,” “going far beyond what was necessary to 

communicate his displeasure with [the protesters’] methods”). This factor also goes to the Department.

Finally, visitors to Facebook could not regard Hicks as a 

member of the general public when he posted the content at 

issue here. He made sure of that by listing his position as a 

corrections sergeant, listing the Department as his employer, 

and posting a photo of himself in uniform. These things made 

it easy to identify Hicks as a Department employee—just as 

the news reporter did—and created the risk that someone 

would associate his posts with the Department. Id. at 793 (concluding the plaintiff did not speak as a member of the public 

because he represented himself as an off-duty police officer 

and “made sure demonstrators remembered him as a police 

officer”); see Coady v. Steil, 187 F.3d 727, 733 (7th Cir. 1999) 

(finding that an off-duty firefighter who displayed a political 

sign on his car was not “speaking as a firefighter” because 

“there was apparently nothing on [his] car which identified 

him as a firefighter”). This factor further tips the scale in the 

Department’s favor.

In sum, even if we assume the posts contributed to informed debate, we conclude the Department’s interest in 

workplace efficiency and preventing disruption outweighed 
No. 23-1091 15

any interest Hicks had in commenting as he did. Having concluded that the Connick/Pickering test favors the Department, 

we hold that the district court properly granted summary 

judgment in favor of the Defendants on the First Amendment 

retaliation claim.

B. Fourteenth Amendment

We now turn to Hicks’s as-applied Fourteenth Amendment challenge to the Department’s code of conduct. 

“It is a basic principle of due process that an enactment is 

void for vagueness if its prohibitions are not clearly defined.” 

Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). But regulations “are not automatically invalidated as vague simply because difficulty is found in determining whether certain marginal offenses fall within their language.” United States v. Nat’l 

Dairy Prods. Corp., 372 U.S. 29, 32 (1963). The question whether 

a regulation is unconstitutionally vague is determined by 

whether it is crafted with sufficient clarity to “give the person 

of ordinary intelligence a reasonable opportunity to know 

what is prohibited.” Grayned, 408 U.S. at 108. 

Unlike laws applicable to the general public, “the government acting in the role of employer enjoys much more latitude 

in crafting reasonable work regulations for its employees.” 

Greer v. Amesqua, 212 F.3d 358, 369 (7th Cir. 2000). Thus, a code 

of conduct for public employees is impermissibly vague only 

if it fails to “convey adequate warning” to “reasonable employee[s]” as to a “sufficiently define[d] [ ] range of inappropriate conduct” that may result in discipline. Id.

Hicks cannot credibly assert that the code of conduct is impermissibly vague as applied to his social media activity. His 

Facebook posts so contradict his role as a corrections sergeant 
16 No. 23-1091 

that no reasonable officer could claim confusion about the 

code of conduct’s application. It is one thing to participate in 

controversial public discussions about politics, religion, race, 

culture and sexuality; it is another to use derogatory language 

and stereotypes about the very populations an officer is 

tasked with safeguarding and supervising. And the code of 

conduct provides more than adequate warning to a reasonable employee charged with protecting the public that posting 

language suggesting joyful anticipation of a government 

overthrow or civil war is “unbecoming” of the employee and

“may reflect unfavorably” on the Department.

Because the code of conduct is not unconstitutionally 

vague as applied to a supervising officer who posts the content at issue here, we affirm the district court’s judgment on 

the Fourteenth Amendment due process claim.

III

For these reasons, the judgment of the district court is

AFFIRMED.