author: TRAXLER, Circuit Judge:

text:
    CSX TRANSPORTATION, INCORPORATED, Plaintiff-Appellant, v. SOUTH CAROLINA DEPARTMENT OF REVENUE; Rick Reames, III, Agency Director of the South Carolina Department of Revenue, Defendants-Appellees.
    No. 16-1726
    United States Court of Appeals, Fourth Circuit.
    Argued: January 26, 2017
    Decided: March 17, 2017

      ARGUED: Stephen Dorr Goodwin, Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, Memphis, Tennessee, for Appellant. Milton Gary Kimpson, South Carolina Department of Revenue, Columbia, South Carolina, for Appellees. ON BRIEF: James W. McBride, Baker, Do-nelson, Bearman, Caldwell & Berkowitz, PC, Washington, D.C.; John C. von Lehe, Jr., Bryson M. Geer, Nelson Mullins, Charleston, South Carolina, for Appellant. Nicole M. Wooten, South Carolina Department of Revenue, Columbia, South Carolina; Thomas Parkin C. Hunter, South Carolina Attorney General’s Office, Columbia, South Carolina, for Appellees.
    Before TRAXLER, DIAZ, and THACKER, Circuit Judges.
   TRAXLER, Circuit Judge:

CSX Transportation, Inc. (“CSXT”) appeals a judgment following a bench trial in its action brought under the Railroad Revitalization and Regulatory Reform Act of 1976 (the “4-R Act”). See 49 U.S.C. § 11501(b)(4). Because we conclude that the district court’s basis for awarding judgment against CSXT was invalid, we vacate the judgment and remand for further proceedings.

I.

A. Determination of Property Tax for South Carolina Property '

This case concerns the differences between how ad valorem taxes ■ are determined in South Carolina for railroad property and how they are determined for most other commercial and industrial property. For each group, the determination is a multi-step process.

In the first step, all property subject to taxation in South Carolina is appraised for assessment purposes at its purported “true value,” which is “fair market value.” S.C. Code § 12-37-930. The methods used for such appraisals vary, however. See, e.g., S.C. Code § 12-4-540(B). South Carolina law specifically provides that railroads are assessed under the “unit valuation” method. See S.C. Code § 12-4-540(B). Under that method, an appraiser values the operating properties of an interstate company as an integrated whole without regard to the value of its component parts. South Carolina generally calculates railroad system values based on the income the property is earning. Once the total value of all of a railroad’s real and personal property throughout' the United States is determined in this fashion, the next step in the unit valuation process is to allocate the portion of the system value that represents the value of the railroad’s property in South Carolina. Finally, property that has already been taxed or that is tax-exempt is subtracted, yielding an “appraised value.”

Once South Carolina has determined the appraised value of a taxpayer’s property in the state, the next step in the tax-calculation process is the application of a statutory assessment ratio. See S.C. Code § 12-43-220. The South Carolina General Assembly has established statutory assessment ratios that apply to various types of property, and for railroad property, the ratio is 9.5%. See S.C. Code § 12-43-220(g). Applying the statutory assessment ratio to the appraised value of a taxpayer’s property yields the “assessed value,” against which the property tax rate is generally applied and property taxes are levied and collected.

However, in the case of property owned or leased by transportation companies for hire, including railroads, there is an additional step that precedes the application of the property tax rate. To the assessed value of such property, South Carolina applies an “equalization factor,” which is a reduction that these companies receive to help negate disparities between the fair market valuation of their properties and those of other commercial/industrial and manufacturing properties. See S.C. Code § 12-43-220(g). Once the appropriate equalization factor is applied, the resulting assessed value is distributed to the various South Carolina counties and cities in which the company operates and these entities in turn apply their local tax rates to determine the taxes the railroad must pay.

The primary focus of this appeal is the South Carolina Real Property Valuation Reform Act (“SCVA”), which the South Carolina General Assembly enacted in 2006. See S.C. Code §§ 12-37-3110 et seq. The SCVA generally limits increases in appraised values of commercial and industrial real properties to 15% within a particular five-year period. See S.C. Code § 12-37-3140(B). The SCVA does not apply, however, to “[r]eal property valued by the unit valuation concept.” S.C. Code § 12-37-3140(D). Because railroad property is valued by that method, railroads do not benefit from the 15% cap. It is that difference between the way South Carolina law treats railroad property and the way it treats other commercial and industrial property that is the subject of the present case.

B. 4-R Act

In 1976, Congress enacted the 4-R Act to “restore the financial stability of the railway system of the United States,” among other purposes. § 101(a), 90 Stat. 33. In order to achieve this goal, Congress targeted state and local taxation schemes that discriminate against railroads. See Burlington N. R.R. Co. v. Oklahoma Tax Comm’n, 481 U.S. 454, 457, 107 S.Ct. 1855, 95 L.Ed.2d 404 (1987). The portion of the 4-R Act at issue here, now codified at 49 U.S.C. § 11501, bars states and localities from engaging in four categories of tax-related conduct.

Under § 11501(b), states (or their subdivisions) “may not”:

(1) [ajssess rail transportation property at a value that has a higher ratio to the true market value of the rail transportation property than the ratio that the assessed value of other commercial and industrial property in the same assessment jurisdiction has to the true market value of the other commercial and industrial property!;]
(2) [l]evy or collect a tax on an assessment that may not be made under paragraph (1) of this subsection!;]
(3) fl]evy or collect an ad valorem property tax on rail transportation property at a tax rate that exceeds the tax rate applicable to commercial and industrial property in the same assessment jurisdiction!; or]
(4)[i]mpose another tax that discriminates against a rail carrier providing transportation subject to the jurisdiction of the Board....

C. Facts / Procedural History

CSXT is a common carrier by railroad operating in 23 states, including South Carolina. CSXT brought this action in federal district court against the South Carolina Department of Revenue and its director (collectively, the “State”). CSXT’s complaint alleges that the State calculated the unit value of its property, applied the appropriate equalization factor, and arrived at an assessed value of $40,727,560 for the 2014 tax year. CSXT alleges that in the period between the 2007 and 2014 tax years, South Carolina’s appraisal of CSXT’s real operating property has increased approximately 51%. CSXT claims that because CSXT is not allowed to benefit from the SCVA caps that apply to other commercial and industrial real property, the property taxes imposed for the 2014 tax year will discriminate against CSXT. CSXT’s complaint requests a judgment declaring that excluding CSXT from the benefit of the SCVA’s caps violates 49 U.S.C. § 11501(b)(4) (“(b)(4)”), which prohibits the imposition of “another tax that discriminates against a rail carrier.” It also requests preliminary and permanent injunctions prohibiting the assessment, levying, or collection of taxes based on appraised values for CSXT’s real property that have increased more than 15% during a five-year period.

On the same day that CSXT filed its complaint, it also filed a motion for preliminary injunction seeking to enjoin the assessment, levy, or collection of taxes based on an assessed value for its property for tax year 2014 that was greater than the amount the 4-R Act allowed. The State opposed CSXT’s motion, contending that the SCVA’s 15% cap was actually an “exemption” and thus that, under the reasoning of Department of Revenue v. ACF Industries, Inc. (“ACF”), 510 U.S. 332, 114 S.Ct. 843, 127 L.Ed.2d 165 (1994), the cap could not be challenged as discriminatory under (b)(4). However, after a hearing, the district court granted CSXT’s motion for a preliminary injunction, concluding that ACF was factually distinguishable from the current case and that CSXT had presented sufficient evidence to give the court reasonable cause to believe the State had violated the 4-R Act.

The State then moved to dismiss the complaint for failure to state a claim on the basis that (b)(4), under which CSXT brought its challenge, does not apply to property taxes. See Fed. R. Civ. P. 12(b)(6). The district court denied the motion, and the case proceeded to a bench trial.

Following the trial, the district court granted judgment against CSXT on the basis that CSXT had not shown that it was challenging the imposition of a “tax,” within the meaning of (b)(4). See CSX Transp., Inc. v. South Carolina Dep’t of Rev., No. 3:14-cv-03821-MBS, 2016 WL 3162178 (D.S.C. June 7, 2016). The court reasoned that CSXT was challenging the SCVA, which does not impose a tax but only caps “increases in appraised values” within the context of “an already-existing tax scheme.” Id. at *4. The court added that although CSXT is precluded from challenging the SCVA under (b)(4), (b)(1) “provides an avenue for challenging an overall, unfavorable tax ‘assessment.’ ” Id. at *5. Indeed, the court suggested that it was the possibility of a (b)(1) challenge that had justified its earlier grant of preliminary injunctive relief. See id.

In the end, however, the court concluded that CSXT “failed to meet its burden of proving discrimination under subsection (b)(4)” because “(b)(4) may not be used to challenge the 15% cap.” Id. Having rejected CSXT’s (b)(4) challenge on that basis, the court did not address the State’s arguments that CSXT had not proven a (b)(4) violation, including arguments that the SCVA’s 15% limit was essentially an exemption that could not be challenged under the 4-R Act and arguments that CSXT had not suffered discrimination. See id.

II. Legal Analysis

In an appeal arising from a bench trial, “we may set aside findings of fact only if they are clearly erroneous,” but we review legal conclusions de novo. Williams v. Sandman, 187 F.3d 379, 381 (4th Cir. 1999).

A.

CSXT maintains that the district court erred in concluding that CSXT failed to challenge the imposition of a tax within the meaning of (b)(4). We agree.

As we have noted, (b)(4) bars states and divisions thereof from “[i]mpos[ing] another tax that discriminates against a rail carrier.” 49 U.S.C. § 11501(b)(4). Because the words “impose” and “tax” are not defined in the 4-R Act, we look to the ordinary definition of those words. See CSX Transp., Inc. v. Alabama Dep’t of Rev. (“CSX I”), 562 U.S. 277, 284, 131 S.Ct. 1101, 179 L.Ed.2d 37 (2011) (noting that “tax” is not defined in 4-R Act and thus giving the word its ordinary meaning). Here, it was undisputed that property taxes were to be imposed for the 2014 tax year based on the assessed value of CSXT’s property. The district court’s observation that the SCVA does not itself impose taxes is immaterial. See id. at 286, 131 S.Ct. 1101 (explaining that railroad challenged the imposition of taxes within the meaning of (b)(4) when the railroad claimed the imposition of the taxes discriminated against it because other taxpayers were exempted from having to pay the taxes); see also Burlington N. R.R. Co. v. Huddleston, 94 F.3d 1413, 1417 (10th Cir. 1996) (holding that property tax violated (b)(4) when intangible personal property such as computer software was generally exempt from taxation but was not so for railroads), overruled in part on other grounds by Alabama Dep’t of Rev. v. CSX Transp., Inc. (“CSX II”), — U.S. -, 135 S.Ct. 1136, 1141, 191 L.Ed.2d 113 (2015); Burlington N. R.R. Co. v. Bair, 766 F.2d 1222, 1224 (8th Cir: 1985) (holding that property tax violated (b)(4) because vast majority of taxpayers received significant reductions in their assessed values for personal property but railroads did not; noting that “[t]his type of de jure discrimination clearly falls within the prohibition of’ (b)(4)). CSXT’s action plainly challenged the imposition of a tax.

B.

Assuming that CSXT did actually challenge the imposition of a tax, the State argues alternatively that CSXT was required to bring its challenge under (b)(1) and was precluded from challenging the tax under (b)(4). The State argues that because (b)(1) specifically concerns property tax assessment values while (b)(4)’s scope is more general, reading (b)(4) to apply to the tax would make (b)(1) superfluous. The State also claims that the Supreme Court’s reasoning in ACF and certain language in CSX I favor adopting its narrow interpretation of (b)(4). The State suggests in fact that this reasoning was the driving force behind the district court’s judgment against CSXT and urges that we affirm the judgment on this basis.

CSXT, on the other hand, argues that while it is possible that refusing to apply the SCVA cap to CSXT’s property may also violate (b)(1), that potentiality has no bearing on the viability of its (b)(4) claim. Indeed, CSXT maintains that (b)(4) is the proper avenue for its challenge given the facts that CSXT alleges. CSXT points out that the basis for its challenge is not that the state’s regime has produced the result that the railroad property is assessed at a higher percentage of its true value than is other commercial and industrial property — the circumstance (b)(1) addresses. Rather, CSXT alleges that the South Carolina tax scheme on its face singles out railroad property for less favorable treatment than other commercial and industrial property. Thus, CSXT argues that (b)(4), which prohibits discrimination, is the proper vehicle for its challenge.

We agree with CSXT. As we will explain, the type of conduct (b)(4) prohibits is significantly different from that which the other three (b) subsections address. For that- reason, (b)(4) is not a general subsection that encompasses the more specific other three (b) subsections. And there is no danger that construing (b)(4) to cover the discrimination alleged here would render the other three (b) subsections superfluous. Thus, if CSXT can prove that the tax imposed was discriminatory, it will have demonstrated a (b)(4) violation. And, as we will explain, neither ACF nor CSX I suggests otherwise.

1.

We begin with the State’s argument that (b)(4) should not be read to cover discrimination based on differences concerning property-tax assessments because (b)(1) specifically addresses that subject and would be rendered surplusage if (b)(4) were construed to apply.

Consideration of this argument requires a close examination of the (b)(1) and (b)(4) prohibitions. Initially, we note that the current language of § 11501(b) is the result of a recodification by Congress that included some technical amendments. See CSX I, 562 U.S. at 284 n.6, 131 S.Ct. 1101. Because the amendments were not intended to change the statute’s meaning, we refer-to the original language of the Act for purposes of statutory interpretation. See Richmond, Fredericksburg & Potomac R.R. Co. v. Department of Taxation, Commonwealth of Va. (“Richmond”), 762 F.2d 375, 377 (4th Cir. 1985); Clinchfield R.R. Co. v. Lynch, 700 F.2d 126, 128 n.1 (4th Cir. 1983). The only word change that has-much relevance to this appeal concerns (b)(4). In the 4-R Act as originally enacted, the subsection now codified as (b)(4) forbade the imposition of “any other tax which results in discriminatory treatment of a common carrier by railroad subject to this part,” Pub. L. No. 94-210, 90 Stat. 54 (1976) (emphasis added), whereas the current version forbids the imposition of “another tax that discriminates against a rail carrier,” 49 U.S.C. § 11501(b)(4) (emphasis added). Recognizing that Congress did not intend its alteration of the language to effect any substantive change, the Supreme Court has treated the current “another tax” language as “synonymous” with the original “any other tax” language. See CSX I, 562 U.S. at 284 n.6, 131 S.Ct. 1101.

This housekeeping behind us, we now turn to the substance of (b)(1) and (b)(4). As we have recited, (b)(1) prohibits “ ‘assess[ment] [of] rail transportation property at a value that has a higher ratio to the property’s true market value ... than the ratio’ between the assessed and true market values of other commercial and industrial property in the same taxing jurisdiction.” CSX Transp., Inc. v. Georgia St. Bd. of Equalization, 552 U.S. 9,13, 128 S.Ct. 467, 169 L.Ed.2d 418 (2007) (quoting 49 U.S.C. § 11501(b)(1)) (alterations omitted). “If the railroad ratio exceeds the ratio for other property by at least five percent, the district court may enjoin the tax.” Id. (citing 49 U.S.C. § 11501(c)). Accordingly, what (b)(1) prohibits, practically speaking, are bottom-line assessment outcomes. If the total assessment of rail transportation property divided by the true value of that property produces a higher ratio than does the total assessment of other industrial and commercial property divided by the true value of that property, (b)(1) has been violated. The reason for the difference in ratios, including the legitimacy of any policy justifications for treating these classes of property differently, does not matter. Nor does the fairness of comparing railroad property to other commercial and industrial property. Rather, as is also true of (b)(2) and (b)(3), it is simply the bottom-line comparison of the very specific values those subsections describe that controls whether the provisions have been violated.

Subsection (b)(4), on the other hand, is a different animal entirely. We interpreted the scope of (b)(4) in Richmond, a case involving a challenge to a state corporate net income tax. In that case we emphasized (b)(4)’s breadth, observing that “it would be difficult to imagine statutory language that would be less needful of construction than the ‘any other’ language.” 762 F.2d at 379 (alteration omitted). In contrast to (b)(1), (b)(2), and (b)(3), which pertain only to property taxes and prohibit only particular assessment and tax-ratio outcomes, (b)(4), we concluded, “was intended as a catchall provision designed to prevent discriminatory taxation of a railroad carrier by any means” and that “on its face, [ (b)(4) ] clearly and unambiguously prohibits all forms of discriminatory taxation of railroads.” Id. (emphasis added). Given (b)(4)’s wide scope, we rejected the interpretation of the district court in that case that the “any other tax” language “include[d] only state and local property taxes and any other taxes enacted in lieu of [the] discriminatory property tax[es] prohibited by” (b)(l)-(3). Id. at 378; see id. at 379-80.

The Supreme Court, too, has emphasized (b)(4)’s breadth and contrasted (b)(4) with the other, more narrowly focused (b) subsections. For example, the Supreme Court has noted that unlike (b)(l)-(3), which “contain three specific prohibitions directed towards property taxes,” CSX II, 135 S.Ct. at 1141, (b)(4) is a “catch-all” for taxes discriminating against railroads, 562 U.S. at 285, 131 S.Ct. 1101; see id. (explaining that “(b)(4) speaks both clearly and broadly”). In CSX II, the Court also observed that (b)(4) broadly targets all types of tax “discrimination” against railroads. See 135 S.Ct. at 1141-42. The Court explained that “discrimination” in this context means unjustified differences in treatment between similarly situated taxpayers. See id. at 1142-44. And, the Court explained that, in contrast to (b)(4), liability under the other three (b) subsections does not require discrimination at all. See id. at 1141-42. Rather, liability under those subsections can be based on mere differences in outcomes rather than differences in treatment, without regard to whether the railroad is similarly situated to the taxpayers it is comparing itself to and without regard to whether the difference in treatment is justified. See id.

In light of these differences, it is hardly surprising that the CSX I Court concluded that (b)(4) “is not a general or collective” prohibition that encompasses the specific provisions that precede it. 562 U.S. at 294, 131 S.Ct. 1101 (internal quotation marks omitted). Rather, the four (b) subsections “prohibit[ ] ... separate forms” of conduct, CSX Transp., Inc., 552 U.S. at 12, 128 S.Ct. 467, and subsection (b)(4) is merely “one of several distinct and independent prohibitions,” CSX I, 562 U.S. at 295, 131 S.Ct. 1101 (alteration and internal quotation marks omitted).

From the stark differences in the nature of (b)(l)’s and (b)(4)’s prohibitions, we can plainly discern that the State’s general/specific characterization is inapt and no construction we could give (b)(4) could render (b)(1) superfluous. Subsection (b)(1) serves to prohibit the particular outcomes it describes even if the taxpayers being compared are not similarly situated and even if the ratio difference is the result of legitimate policy justifications. Subsection (b)(4) would provide no relief for railroads in such a scenario.

2.

We also note that ACF does not support construing (b)(4) to preclude claims concerning a state’s method of determining assessment values for property tax purposes. In ACF, several companies that leased railroad cars to railroads and shippers challenged an Oregon property tax as discriminatory under (b)(4) because Oregon law provided exemptions for certain classes of business personal property. See 510 U.S. at 335, 114 S.Ct. 843. The Court noted “that tax exemptions, as an abstract matter, could be a variant of tax discrimination.” Id. at 343, 114 S.Ct. 843 (emphasis added). Nevertheless, the Court concluded that the structure of the statute “warrants the conclusion that subsection (b)(4) does not limit state discretion to levy a tax upon railroad property while exempting various classes of nonrailroad property.” Id.

The Court’s reasoning to reach this conclusion involved several steps. The Court began by noting that illegality under subsections (b)(1) — (3) is measured by comparing the taxation of railroad property to taxation of “commercial and industrial property.” Id. at 341, 114 S.Ct. 843 (internal quotation marks omitted); CSX I, 562 U.S. at 290, 131 S.Ct. 1101. The Court observed that the definition of “commercial and industrial property” includes only property “subject to a property tax levy,” a phrase the Court interpreted as not including exempt property. ACF, 510 U.S. at 341, 114 S.Ct. 843 (internal quotation marks omitted); CSX I, 562 U.S. at 290, 131 S.Ct. 1101. Based on Congress’s exclusion of exempt property from the comparison, the Court determined that “railroads [could] not challenge property tax exemptions under” subsections (b)(1) — (3). ACF, 510 U.S. at 342, 114 S.Ct. 843; see CSX I, 562 U.S. at 290, 131 S.Ct. 1101. And given that result, the Court reasoned that “[i]t would be illogical to conclude that Congress ... would turn around and nullify [that] choice” by allowing (b)(4) to prohibit the very same type of exemptions. ACF, 510 U.S. at 343, 114 S.Ct. 843; see CSX I, 562 U.S. at 290-91, 294, 131 S.Ct. 1101. On this basis, the Court held that “a tax upon railroad property is [not] even subject to challenge under subsection (b)(4) on the ground that certain other classes of commercial and industrial property are exempt.” ACF, 510 U.S. at 338-39, 114 S.Ct. 843, see id. at 339-48, 114 S.Ct. 843; CSX I, 562 U.S. at 290-91, 131 S.Ct. 1101.

The ACF Court rejected the contention that its construction of (b)(4) produced an “anomalous result.” ACF, 510 U.S. at 346, 114 S.Ct. 843; see id. at 347, 114 S.Ct. 843. Most importantly, the Court emphasized that the case before it was not one “in which the railroads — either alone or as part of some isolated and targeted group— [we]re the only commercial entities subject to an ad valorem property tax.” Id. at 346, 114 S.Ct. 843. The Court added that “[i]f such a case were to arise, it might be incorrect to say that the State ‘exempted’ the nontaxed property.” Id. The Court noted that, in that scenario, “one could say that the State had singled out railroad property for discriminatory treatment.” Id. at 346-47, 114 S.Ct. 843. The Court also added that “though some may think it unwise to forbid discrimination in tax rates and assessment ratios while permitting exemptions of certain nonrailroad property, the result is not so bizarre that Congress could not have intended it.” Id. at 347, 114 S.Ct. 843 (emphasis added and internal quotation marks omitted).

In this case, CSXT’s claim is based on the very type of conduct that the ACF Court emphasized was not before it. CSXT claims that South Carolina’s scheme explicitly and unjustifiably singles out railroads — as part of an isolated group — for less favorable treatment than other similarly situated taxpayers. If CSXT is correct, then the State’s conduct would fit squarely within the Court’s ’definition of discrimination, and there would be no reason why (b)(4) would not apply. See CSX I, 562 U.S. at 291, 131 S.Ct. 1101 (“Giving subsection (b)(4) something other than its ordinary meaning, absent any structural reason to do so, would ... contravene the expressed will of Congress.”); Huddleston, 94 F.3d at 1417 (distinguishing ACF and holding that tax violated (b)(4) when intangible personal property such as computer software was generally exempt from taxation but was not exempt for public utilities, which included railroads), overruled in part on other grounds by CSX II, 135 S.Ct. at 1141.

3.

In support of its position that a property tax cannot violate (b)(4) based on the amount of the assessment on which the tax is based, the State also relies on particular language from the Supreme Court’s CSX I opinion. In that case, a railroad alleged a (b)(4) violation “because rail carriers, but not motor or water carriers, must pay Alabama’s sales and use taxes on diesel fuel.” CSX I, 562 U.S. at 283, 131 S.Ct. 1101. Based on an extension of ACF’s reasoning, the Eleventh Circuit had concluded that (b)(4) could not be the basis for challenging non-property-tax exemptions either and thus held that the railroad’s (b)(4) challenge could not proceed. See id. at 282-83, 131 S.Ct. 1101. The Supreme Court granted certiorari and considered two questions: whether CSXT was “challenging ‘another tax’ within the meaning of [ (b)(4) ] ... [a]nd, if so, [whether] that tax [might] ‘discriminate’ against rail carriers [within the meaning of (b)(4) ] by exempting their competitors.” Id. at 284, 131 S.Ct. 1101.

Regarding the first issue, the Court considered an argument by the defendants and amici that (b)(4) did not apply to all types of taxes but rather applied “only to the gross-receipts taxes ... known as ‘in lieu’ taxes.” Id. at 285, 131 S.Ct. 1101. The Court rejected that argument, explaining that although the Act does not specifically define “tax,” the ordinary definition of the word includes “multiple forms of taxation on property, income, transactions, or activities.” Id. The Court concluded that “ ‘[a]n-other tax’ ... is best understood to refer to all of these.” Id. The Court added that “more precisely,” the language should be understood “to encompass any form of tax a State might impose ... except the taxes on property previously addressed in subsections (b)(l)-(S)” since “another tax” was “a catch-all.” Id. (emphasis added).

The State now seizes upon the language emphasized above, contending that it means that railroads cannot challenge a tax under (b)(4) if the tax possibly could have been challenged under (b)(1). That is not how we read the Court’s language, however. As we have noted, one of the two issues presented in CSX I was whether •reoTO-property-tax exemptions could be the basis for a (b)(4) challenge. See CSX I, 562 U.S. at 283-84, 131 S.Ct. 1101. This issue required the Court to discuss ACF at length and decide whether to extend its reasoning to apply to non-property taxes. See id. at 282-83, 289-96, 131 S.Ct. 1101. Given that context, the Court’s “taxes on property previously addressed in subsections (b)(1) — (3)” language in CSX I appears fairly clearly to refer to ACF’s decision that (b)(4) should not be construed to prohibit an aspect of a tax scheme that the other (b) subsections were designed to allow. See ACF, 510 U.S. at 343, 114 S.Ct. 843.

' The State’s suggestion that the CSX I Court intended its language to mean that a railroad cannot challenge a tax under (b)(4) if the tax also might conceivably violate one of the other (b) subsections is implausible for several reasons. Because the taxes at issue in CSX I were use and sales taxes, they could not possibly have violated (b)(1), (2), or (3), which address property taxes only. See CSX I, 562 U.S. at 291, 131 S.Ct. 1101. Thus, the Court had no reason to decide, or even raise, the issue of whether a railroad would be precluded from challenging a tax under (b)(4) that might be challenged under one of the other (b) subsections. Moreover, had the Court intended to announce the new (b)(4) exception that the State claims it created with this language, one certainly would have expected the Court to have explained (1) why the Court even raised that issue; (2) the legal basis for the new exception; and (3) the tension that would exist between the new exception and the ACF Court’s suggestion that (b)(4) might be violated if a railroad was “singled out” for unfavorable treatment in the form of inability to benefit from property tax exemptions given to other taxpayers. ACF, 510 U.S. at 347, 114 S.Ct. 843. That the Court did not do any of these things very strongly indicates that it did not intend to break the new ground the State contends it did.

Moreover, had Congress intended that a railroad would need to prove the absence of a violation of (b)(1), (2), or (3) in order to prove a (b)(4) violation, Congress could have conveyed that intention quite easily. For example, instead of simply forbidding “the imposition of any other tax which results in discriminatory treatment of a common carrier by railroad,” Congress could have added, “and which- does not violate any other subsection herein.” The State may suggest that Congress intended the words “any other” to serve this same function. But, in our view, the much more likely reason for Congress’s reference to “[t]he imposition of any other tax which results in discriminatory treatment of a ... railroad” was. simply to acknowledge that the other (b) subsections already prohibited some taxes that discriminate against railroads. Indeed, we have held that Congress did not intend the “any other” language to be limiting at all. See Richmond, 762 F.2d at 379 (explaining that “it would be difficult to imagine statutory language ... less needful of construction than the ‘any other’ language” and holding that subsection (b)(4) “on its face, clearly and unambiguously prohibits all forms of discriminatory taxation of railroads” (alteration and internal quotation marks omitted); see also CSX I, 562 U.S. at 285, 131 S.Ct. 1101 (“The phrase ‘another tax’ is a catch-all.”)). We certainly do not read the “any other” language as adding an additional element to a (b)(4) violation.

III. Conclusion

In our view, the application of (b)(4) in this case will be fairly straight-forward. Congress designed (b)(4) to prohibit taxes that discriminate against railroads. CSXT alleges that if it is not allowed to benefit from the SCVA cap, its 2014 property tax will be just such a tax. If CSXT is correct, it should prevail. If not, it should lose. There is no basis for precluding CSXT from proving the claim it alleges — discrimination — and requiring CSXT instead to fit its challenge into a provision that does not even address discrimination and that requires proof of facts CSXT has not even alleged. Because the district court granted judgment against CSXT without ever reaching the question of whether the challenged tax was discriminatory, we vacate the judgment and remand to the district court for further proceedings.

VACATED AND REMANDED

      . Generally, the South Carolina Department of Revenue is charged with valuing all real and personal property of manufacturers, utilities, mining companies, and certain transportation companies, such as railroads, private carlines, and airlines. See S.C. Code § 12-4-540(A). County assessors value the remaining commercial, residential, and agricultural property. See S.C. Code § 12-37-90.

      . By reviewing prior income statements, South Carolina can determine anticipated future profits and divide that by the weighted average cost of the capital.

      . This allocation is done by examining a number of factors, including the percentage of the railroad’s revenue that is derived in South Carolina, the percentage of its track miles located in South Carolina and the percentage of its investment in South Carolina.

      . The cap first went into effect for the 2007 tax year, which the Act designated as the “base year.” S.C. Code § 12-37-3140(C) (internal quotation marks omitted). A cap remains in effect until the occurrence of an "assessable transfer of interest.” S.C. Code § 12-37-3140(B).

      . The court initially lifted the preliminary injunction but subsequently granted a post-judgment motion by CSX to reinstate the injunction pending CSXT’s appeal to us. See Fed. R. Civ. P. 62(c).

      . The common meaning of "impose” is "[t]o levy or exact (a tax or duty).” Black’s Law Dictionary 873 (10th ed. 2014).

      . Thus, for example, when a railroad established, by way of a sales-assessment ratio study, that “the real properties of other commercial and industrial taxpayers were assessed at 72 percent of actual value, while the railroads were taxed at essentially full value,” the "railroad established a violation of § 306(l)(a) of the Act,” which corresponds to subsection (b)(1) in the recodified version. Clinchfield R.R. Co. v. Lynch, 700 F.2d 126, 130 (4th Cir. 1983); see id. at 128 n.1.

      . This became the "another” language in (b)(4) when the 4 — R Act was amended.

      . Those classes included “agricultural machinery and equipment; nonfarm business inventories; livestock; poultry; bees; fur-bearing animals; and agricultural products in the possession of farmers.” ACF, 510 U.S. 332, 335, 114 S.Ct. 843 (1994). “Standing timber [was] also exempt, but [was] subject to a severance tax when harvested.” Id. And, Oregon also exempted motor vehicles and levied upon them only "a modest annual registration fee.” Id.

      . The Court also discussed other considerations that it believed “reinforce[d] [its] construction of the statute.” ACF, 510 U.S. at 343, 114 S.Ct. 843. The Court noted that the statute did not specifically "restrict state power to exempt nonrailroad property,” id. at 344, 114 S.Ct. 843; federalism concerns favored preempting traditional state powers only when that was “the clear and manifest' purpose of Congress," id. at 345, 114 S.Ct. 843 (internal quotation marks omitted); and the statute's legislative history did not indicate that Congress was particularly concerned about exemptions, see id. at 345-46, 114 S.Ct. 843.

      . Because the tax before it did "not single out railroad property in that manner,” however, the Court did "not decide whether ... (b)(4) would prohibit a tax of that nature.” Id. at 347,114 S.Ct. 843.

      . Other circuits had held before ACF that precluding railroads from receiving tax benefits that the vast majority of other taxpayers received could constitute discrimination under (b)(4). See Burlington N. R.R. Co. v. Bair, 766 F.2d 1222, 1224 (8th Cir. 1985) (holding that property tax violated (b)(4) because vast majority of taxpayers received significant reductions in their assessed values for personal property but railroads did not; noting that "[t]his type of de jure discrimination clearly falls within the prohibition of” the predecessor to (b)(4)); Ogilvie v. State Bd. of Equalization, 657 F.2d 204, 209-10 (8th Cir. 1981) (holding that property tax violated (b)(4) when tax for utilities, car-line companies, pipeline companies and railroads was based in part on the assessed value of personal property but such property was exempt for other businesses).
      We note that the State argues in passing that even if CSXT’s claim is cognizable under (b)(4), CSX failed to present evidence sufficient to establish a prima facie case of a (b)(4) violation. We conclude that this is an issue that would be best addressed by the district court on remand in the first instance, and we express no view on the merits of the parties' respective positions.

      . It is worth noting that CSXT has not alleged facts sufficient to establish a (b)(1) violation and the State denies that such a violation occurred.

      . Not only did the Court not acknowledge any tension between its language and ACF, it expressly stated that it "st[oo]d foursquare behind [its] decision in \ACF\.” CSX I, 562 U.S. 277, 290, 131 S.Ct. 1101 (2011).

      . This is the language of the original 4-R Act that corresponds to (b)(4).


source: Caselaw Access Project

author: WYNN, Circuit Judge:

license: Public Domain

text:
    Mark GRUTZMACHER, Plaintiff, and Kevin Patrick Buker, Plaintiff-Appellant, v. HOWARD COUNTY; Chief William F. Goddard, III; John Jerome; John S. Butler, Defendants-Appellees.
    No. 15-2066
    United States Court of Appeals, Fourth Circuit.
    Argued: December 7, 2016
    Decided: March 20, 2017

      ARGUED: Edward Scott Robson, ROBSON & ROBSON, PC, King of Prussia, Pennsylvania, for Appellant. Cynthia G. Peltzman, HOWARD COUNTY OFFICE OF LAW, Ellicott City, Maryland, for Ap-pellees. ON BRIEF: David G.C. Arnold, LAW OFFICE OF DAVID ARNOLD, King of Prussia, Pennsylvania, for Appellant. Gary W. Kuc, County Solicitor, Faith R. Adelman, Senior Assistant County Solicitor, HOWARD COUNTY OFFICE OF LAW, Ellicott City, Maryland, for Appel-lees.
    Before GREGORY, Chief Judge, and WYNN and THACKER, Circuit Judges.
   WYNN, Circuit Judge:

Plaintiff Kevin Patrick Buker is a former Battalion Chief with the Howard County, Maryland Department of Fire and Rescue Services (the “Department”). Defendants are Howard County, Maryland; former Howard County Fire Chief William F. Goddard, III (“Chief Goddard”); former Howard County Deputy Chief John Butler (“Deputy Chief Butler”); and Howard County Assistant Chief John Jerome (“Assistant Chief Jerome,” and collectively with Howard County, Chief Goddard, and Deputy Chief Butler, “Defendants”).

Plaintiff brought this matter in the District Court for the District of Maryland, at Baltimore, alleging that Defendants retaliatorily fired him for exercising his First Amendment free-speech rights and, second, that the Department’s social media policy, which played a role in Plaintiffs termination, was facially unconstitutional under the First Amendment. This appeal arises from the district court’s orders granting summary judgment in favor of Defendants on Plaintiffs First Amendment retaliation claim and dismissing as moot Plaintiffs facial challenge to the social media policy. On review, we affirm the judgment of the district court.

I.

A.

The Department employed Plaintiff as a paramedic for the Howard County Fire Department from 1997 through 2012. In 2012, Chief Goddard promoted Plaintiff to the rank of battalion chief and assigned Plaintiff to the second battalion as its commander. According to Chief Goddard, as a battalion chief, Plaintiff was responsible for “manag[ing] the day-to-day operations of the field,” as well as “ensm[ing] ... the policies and procedures as written in the department are complied with.” J.A. 139.

As a paramilitary-type organization, the Department executes the enforcement of its orders in a hierarchical manner that requires employees to strictly follow a chain-of-command. At the top of the Department’s chain-of-command is the fire chief, followed by deputy fire chiefs, assistant chiefs, battalion chiefs, and, lastly, first responders. Although positioned at the lower end of the chain-of-command, Chief Goddard described the rank of battalion chief as “the most critical leadership position in the organization,” as battalion chiefs directly supervise first responders. J.A. 138.

In 2011, Chief Goddard, along with the Department’s public information officer, began drafting a social media policy for the Department, partially in response to national debate about the use of social media within fire and emergency services departments. The Department’s decision to develop a social media policy also stemmed from an incident involving a Howard County volunteer firefighter posting to Facebook a photograph of a lynching, depicted by a noosed, brown beer bottle surrounded by white beer cans with paper cones for hoods. In a comment accompanying the photograph, the volunteer firefighter said that he “[w]ant[ed] to go fishing for mud sharks/there are way to many here in Maryland. They are not good to eat though, I hear they taste like decayed chicken.” J.A. 835; Dist. Ct. Dkt. 40-4, at 5; Dist. Ct. Dkt. 40-7, at 3; Dist. Ct. Dkt. 40-24. Throughout the drafting process, the Department provided internal stakeholders — including Plaintiff, as well as all of the other battalion chiefs—opportunities to review and comment on the forthcoming policy.

On November 5, 2012, the Department issued General Order 100.21, entitled “Social Media Guidelines,” which set forth the Department’s policy regarding the use of social media by Department personnel. Under the Social Media Guidelines, the Department prohibited personnel “from posting or publishing any statements, endorsements, or other speech, information, images or personnel matters that could reasonably be interpreted to represent or undermine the views or positions of the Department, Howard County, or officials acting on behalf of the Department or County.” J.A. 32. The Social Media Guidelines also barred Department employees “from posting or publishing statements, opinions or information that might reasonably be interpreted as discriminatory, harassing, defamatory, racially or ethnically derogatory, or sexually violent when such statements, opinions or information, may place the Department in disrepute or negatively impact the ability of the Department in carrying out its mission.” J.A. 32. Additionally, the Social Media Guidelines prohibited Department personnel from “post[ing] any information or images involving off-duty activities that may impugn the reputation of the Department or any member of the Department.” J.A. 32.

Further, on December 6, 2012, the Department issued General Order 100.22, entitled “Code of Conduct,” which was “aimed at ensuring members of the Department maintain the highest level of integrity and ethical conduct both on and off duty.” J.A. 34. In relevant part, the Code of Conduct prohibited Department personnel from “intentionally engaging] in conduct, through actions or words, which are disrespectful to, or that otherwise undermines the authority of, a supervisor or the chain of command” and “publicly criticizing] or ridiculing] the Department or Howard County government or their policies.” J.A. 38-39. The Code of Conduct also required “[m]embers [to] conduct themselves at all times, both on and off duty, in such a manner as to reflect favorably on the Department.” J.A. 38. The Code of Conduct further prohibited Department employees from engaging in “[c]onduct unbecoming” to the Department, which it defined as “any conduct that reflects poorly on an individual member, the Department, or County government, or that is detrimental to the public trust in the Department or that impairs the operation and efficiency of the Department.” J.A. 38.

On January 20, 2013, Plaintiff was watching news coverage of a gun control debate in his office and posted the following statement to his Facebook page while on-duty:

My aide had an outstanding idea .. lets all kill someone with a liberal ... then maybe we can get them outlawed too! Think of the satisfaction of beating a liberal to death with another liberal ... its almost poetic ...

J.A. 82-83 (ellipses in original). Twenty minutes later, Mark Grutzmacher, a county volunteer paramedic, replied to Plaintiffs earlier post with the following comment:

But.... was it an “assult liberal”? Gotta pick a fat one, those are the “high capacity” ones. Oh ... pick a black one, those are more “scary”. Sorry had to perfect on a cool idea!

J.A. 84 (ellipses in original). Six minutes later, Plaintiff “liked” Grutzmacher’s comment and replied, “Lmfao! Too cool Mark Grutzmacher!” J.A. 85.

Two Department employees subsequently forwarded Plaintiffs and Grutzmacher’s Facebook posts to another battalion chief within the Department. On January 22, 2013, that battalion chief sent a screenshot of Plaintiffs initial Facebook post to Assistant Chief Jerome with a text message stating, “Chief, not sure this is something that should be displayed from one of our battalion chiefs.” J.A. 82. Assistant Chief Jerome then contacted his direct supervisor, Deputy Chief Butler, along with another assistant chief, regarding Plaintiffs Facebook posts. Later that day, the three chiefs met to discuss whether Plaintiffs posts violated the Social Media Guidelines or Code of Conduct and, if so, what corrective measures the Department would take. Following their meeting, Assistant Chief Jerome emailed Plaintiff, directing him to review his recent Facebook posts and to remove anything inconsistent with the Department’s social media policy. Though Plaintiff maintained that he was in compliance with the social media policy, Plaintiff removed the January 20 posts.

On January 23 — a few hours after Plaintiff informed Assistant Chief Jerome that he had removed the posts — Plaintiff posted the following to his Facebook “wall”:

To prevent future butthurt and comply with a directive from my supervisor, a recent post (meant entirley in jest) has been deleted. So has the complaining party. If I offend you, feel free to delete me. Or converse with me. I’m not scared or ashamed of my opinions or political leaning, or religion. I’m happy to discuss any of them with you. If you’re not man enough to do so, let me know, so I can delete you. That is all. Semper Fi! Carry On.

J.A. 96. One of Plaintiffs Facebook friends then replied, “As long as it isn’t about the [Department], shouldn’t you be able to express your opinions?” J.A. 96. Plaintiff responded:

Unfortunately, not in the current political climate. Howard County, Maryland, and the Federal Government are all Liberal Democrat held at this point in time. Free speech only applies to the liberals, and then only if it is in line with the liberal socialist agenda. County Gov-ernement recently published a Social media policy, which the Department then published it’s own. It is suitably vague enough that any post is likely to result in disciplinary action, up to and including termination of employment, to include this one. All it took was one liberal to complain ... sad day. To lose the First Ammendment rights I fought to ensure, unlike the WIDE majority of the Government I serve.

J.A. 96 (ellipses in original). Another of Plaintiffs Facebook friends then commented, “Oh, your gonna get in trouble for saying that too.” J.A. 96. “Probably ...,” Plaintiff replied. J.A. 96.

The following day, January 24, a captain in the Department emailed Chief Goddard a screenshot of Plaintiffs January 23 Fa-cebook posts. The captain also emailed Deputy Chief Butler and an assistant chief a “summary of the Buker issue,” in which he noted the “racial overtones” of Grutzmacher’s comment on Plaintiffs January 20 Facebook post. J.A. 101. The captain stated that by replying to the comment, Plaintiff “endorsed” Grutzmacher’s racially charged statement. J.A. 101. The captain also characterized Plaintiffs January 23 posts as “insubordinate toward [management].” J.A. 101. The captain suggested treating the incidents “like any other investigation” and determining any disciplinary action “after the conclusion of the investigation.” J.A. 101. The next day, the Department moved Plaintiff out of field operations to an administrative assignment pending the results of an internal investigation.

Approximately three weeks later, on February 17, 2013, Mike Donnelly, a member of a Department-affiliated volunteer company, posted to his own Facebook page a picture of an elderly woman with her middle finger raised. Overlaid across the picture was the following caption: “THIS PAGE, YEAH THE ONE YOU’RE LOOKING AT IT’S MINE[.] I’LL, POST WHATEVER THE FUCK I WANT[.]” J.A. 100. Above the picture, Donnelly wrote, “for you Chief.” J.A. 100. Plaintiff, who was one of Donnelly’s Facebook friends, “liked” the photograph.

Chief Goddard served Plaintiff with charges of dismissal on February 25. The charges referenced Plaintiffs: (1) January 20 and January 23 Facebook posts; (2) “like” of and reply to Grutzmacher’s January 20 comment; (3) replies to comments on Plaintiffs January 23 post; and (4) “like” of Donnelly’s February 17 post. The charges asserted that these posts violated the Department’s Code of Conduct and Social Media Guidelines. In particular, the charging document asserted, among other things, that Plaintiffs Facebook activity improperly:

• “[A]dopted” and “approv[ed]” Grutz-macher’s comment, which “had racial overtones and was insensitive and derogatory in nature”;
• Reflected a “[f]ailure to grasp the impact and implications of [the] comments” on Plaintiffs “leadership position within the Department as a Battalion Chief,” in which Plaintiff was “responsible for enforcing Department policies and taking appropriate action for violations of those policies by the people [he] supervise[d]”;
• Demonstrated “repeated insolence and insubordination” by replacing the January 20 post “with another posting tirade mocking the Chain-of-Command, the Department, and the County”; and
• “[I]nterfered with Department operations” and caused “disruption [in] the Department’s Chain-of-Command and authority.”

J.A. 105.

Chief Goddard provided Plaintiff with an opportunity to rebut the specific charges at a pre-termination meeting held on March 8. Following that meeting, on March 14, 2013, Chief Goddard terminated Plaintiffs employment with the Department.

'B.

On October 12, 2013, Plaintiff brought an action under 42 U.S.C. § 1983 in federal district court seeking reinstatement and damages. Plaintiff alleged that his Face-book posts were a substantial motivation for his termination and that, by terminating him, the Department impermissibly retaliated against Plaintiff for exercising his First Amendment rights. Plaintiff also alleged that the Department’s Social Media Guidelines and Code of Conduct, as drafted and applied to Plaintiff, violated the First Amendment by impermissibly restricting Department employees’ ability to speak on matters of public concern. The district court later construed the second of Plaintiffs claims as a facial challenge to the Department’s Social Media Guidelines and Code of Conduct.

Following discovery, Defendants moved for summary judgment, arguing that Plaintiffs Facebook activity did not involve matters of public concern and that Plaintiffs interest in speaking did not outweigh the Department’s interest in minimizing disruption. Defendants later filed a second motion for summary judgment as to Plaintiffs facial-challenge claims, arguing that the Department’s policies were not unconstitutionally overbroad or vague and did not constitute prior restraints.

The district court granted Defendants’ first summary judgment motion on March 30, 2015. Buker v. Howard County., Nos. MJG-13-3046, MJG-13-3747, 2015 WL 3456750 (D. Md. May 27, 2015). In doing so, the district court concluded that Plaintiffs January 20 Facebook posts and “like” were unprotected speech because they were “capable of impeding .the [Fire Departmentj’s ability to perform its duties efficiently.” Id. at *13 (alteration in original) (internal quotation marks omitted) (quoting Duke v. Hamil, 997 F.Supp.2d 1291, 1302 (N.D. Ga. 2014)). The district court further concluded that Plaintiffs January 23 posts and February 17 “like” similarly did not amount to protected speech because Plaintiff failed to show that he was speaking as a citizen on a matter of public concern. Id. at *13-14. The district court’s memorandum decision and order did not, however, address Defendants’ second motion for summary judgment, leaving unresolved Plaintiffs facial challenge.

On June 22, 2015, the Department replaced its Social Media Guidelines and Code of Conduct policies with revised versions. The revised version of the Social Media Guidelines eliminated many of the earlier version’s prohibitions on Department personnel’s private use of social media. And the revised Code of Conduct did not include any of the provisions in the previous version that Plaintiff had challenged. Highlighting these changes, Defendants moved to dismiss Plaintiffs facial challenge as moot, arguing that the Department’s revised policies did not contain the provisions Plaintiff challenged as over-broad, void for vagueness, or' prior restraints. The district court thus denied Defendants’ earlier motion for summary judgment as moot and granted Defendants’ motion to dismiss on August 12, 2015.

Plaintiff timely appealed the district court’s (1) award of summary judgment in favor of Defendants on Plaintiffs First Amendment retaliation claim and (2) dismissal on mootness grounds of Plaintiffs facial challenge to the Social Media Guidelines and Code of Conduct.

II.

A.

On appeal, Plaintiff first argues that the district court erred in granting summary judgment in favor of Defendants on his First Amendment retaliation claim. Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “We review a district court’s decision to grant summary judgment de novo, applying the same legal standards as the district court and viewing all facts and reasonable inferences therefrom in the light most favorable to the nonmoving party.” Smith v. Gilchrist, 749 F.3d 302, 307 (4th Cir. 2014) (quoting T-Mobile Ne. LLC v. City Council of Neport News, 674 F.3d 380, 384-85 (4th Cir. 2012)).

From the outset, we point out that “[t]he First Amendment ‘was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.’ ” Connick v. Myers, 461 U.S. 138, 145, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983) (quoting Roth v. United States, 354 U.S. 476, 484, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957)). “Protection of the public interest in having debate on matters of public importance is at the heart of the First Amendment.” McVey v. Stacy, 157 F.3d 271, 277 (4th Cir. 1998) (citing Pickering v. Bd. of Educ., 391 U.S. 563, 573, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968)).

To resolve Plaintiffs appeal, we start by considering the First Amendment rights of public employees. Public employees do not “relinquish First Amendment rights to comment on matters of public interest by virtue of government employment.” Connick, 461 U.S. at 140, 103 S.Ct. 1684. To the contrary, the Supreme Court has long recognized

that public employees are often the members of the community who are likely. to have informed opinions as-to the operations of their public employers, operations which are of substantial concern to the public. Were they not able to speak on these matters, the community would be deprived of informed opinions on important public issues.

City of San Diego v. Roe, 543 U.S. 77, 82, 125 S.Ct. 521, 160 L.Ed.2d 410 (2004) (per curiam) (citing Pickering, 391 U.S. at 572, 88 S.Ct. 1731). To that end, the Supreme Court has repeatedly “underscored the ‘considerable value’ of ‘encouraging, rather than inhibiting, speech by public employees. For government employees are often in the best position to know what ails the agencies for which they work.’ ” Hunter v. Town of Mocksville, 789 F.3d 389, 396 (4th Cir. 2015) (quoting Lane v. Franks, U.S. -, 134 S.Ct. 2369, 2377, 189 L.Ed.2d 312 (2014)). As such, we do not take lightly “[o]ur responsibility ... to ensure that citizens are not deprived of fundamental rights by virtue of working for the government.” Connick, 461 U.S. at 147, 103 S.Ct. 1684.

“That being said, precedent makes clear that courts must also consider ‘the government’s countervailing interest in controlling the operation of its workplaces.’ ” Hunter, 789 F.3d at 397 (quoting Lane, 134 S.Ct. at 2377). Just as there is a “public interest in having free and unhindered debate on matters of public importance,” Pickering, 391 U.S. at 573, 88 S.Ct. 1731, “[t]he efficient functioning of government offices is a paramount public interest,” Robinson v. Balog, 160 F.3d 183, 189 (4th Cir. 1998). Therefore, a public employee “by necessity must accept certain limitations on his or her freedom.” Garcetti v. Ceballos, 547 U.S. 410, 418, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006). In particular, under the balancing test, developed by the Supreme Court in Pickering and Connick, “the First Amendment does not protect public employees when their speech interests are outweighed by the government’s interest in providing efficient and effective services to the public.” Lawson v. Union Cty. Clerk of Court, 828 F.3d 239, 247 (4th Cir. 2016).

Regarding Plaintiffs., retaliation claim, “a public employer contravenes a public employee’s First Amendment rights when it discharges ... ‘[the] employee ... based on the exercise of that employee’s free speech rights.” Ridpath v. Bd. of Governors Marshall Univ., 447 F.3d 292, 316 (4th Cir. 2006) (alteration in original) (quoting Suarez Corp. Indus. v. McGraw, 202 F.3d 676, 686 (4th Cir. 2000)). To state a claim under the First Amendment for retaliatory discharge, a plaintiff must satisfy the three-prong test set forth in McVey v. Stacy, 157 F.3d 271 (4th Cir. 1998). In particular, the plaintiff must show: (1) that he was a “public employee ... speaking as a citizen upon a matter of public concern [rather than] as an employee about a matter of personal interest;” (2) that his “interest in speaking upon the matter of public concern outweighed the government’s interest in providing effective and efficient services to the public;” and (3) that his “speech was a substantial factor in the employer’s termination decision.” 157 F.3d at 277-78.

The district court found that Plaintiffs January 20 speech failed on the second prong of the McVey test, and that Plaintiffs January 23 and February 17 speech failed on the first McVey prong. Buker, 2015 WL 3456750, at *9-14. Plaintiff urges us to reverse the district court’s grant of summary judgment to Defendants and, in doing so, makes two arguments. First, Plaintiff argues that the district court erred in granting summary judgment when there remained a factual dispute regarding whether Plaintiff could meet his burden under the McVey test’s second prong. Specifically, Plaintiff maintains that his January 20 speech did not disrupt the Department or cause a reasonable apprehension of disruption, such that the Department’s interest in maintaining an efficient workplace outweighed Plaintiffs interest in speaking. Second, Plaintiff argues that the district court erred in finding that his January 23 and February 17 posts and “like” were not on a matter of public concern and, therefore, failed McVey’s first prong. For the reasons below, we hold that the district court properly granted summary judgment to Defendants.

1.

We first address whether Plaintiffs Facebook posts and “likes” addressed matters of public concern. In determining whether speech addresses matters of public concern, “we examine the content, context, and form of the speech at issue in light of the entire record.” Urofsky v. Gilmore, 216 F.3d 401, 406 (4th Cir. 2000) (en banc), “Speech involves a matter of public concern when it involves an issue of social, political, or other interest to a community.” Id. This “public-concern inquiry centers on whether ‘the public or the community is likely to be truly concerned with or interested in the particular expression.’ ” Kirby v. City of Elizabeth City, 388 F.3d 440, 446 (4th Cir. 2004) (quoting Arvinger v. Mayor of Baltimore, 862 F.2d 75, 79 (4th Cir. 1988)); see also Goldstein v. Chestnut Ridge Volunteer Fire Co., 218 F.3d 337, 352-53 (4th Cir. 2000) (“This is a subtle, qualitative inquiry; we use the content, form, and context as guideposts in the exercise of common sense, asking throughout: would a member of the community be truly concerned with the employee’s speech?”).

Conversely, “[i]n the absence of unusual circumstances, a public employee’s speech ‘upon matters only of personal interest’ is not afforded constitutional protection.” Seemuller v. Fairfax Cty. Sch. Bd., 878 F.2d 1578, 1581 (4th Cir. 1989) (quoting Connick, 461 U.S. at 147, 103 S.Ct. 1684); see also Jurgensen v. Fairfax County, 745 F.2d 868, 879 (4th Cir. 1984) (“If the speech relates primarily to a matter of ‘limited public interest’ and ... cen-' ter[s] instead on matters primarily, if not exclusively ‘of personal interest’ to the employee ... that fact must be weighed in determining whether a matter of true public concern is involved.... ”). To that end, “[t]he Supreme Court has warned us to guard against ‘attempt[s] to constitutionalize the employee grievance.’ ” Brooks v. Arthur, 685 F.3d 367, 373 (4th Cir. 2012) (second alteration in original) (quoting Connick, 461 U.S. at 154, 103 S.Ct. 1684). Accordingly, “[pjersonal grievances! and] complaints about conditions of employment ... do not constitute speech about matters of public concern.” Campbell v. Galloway, 483 F.3d 258, 267 (4th Cir. 2007) (internal quotation marks omitted) (quoting Stroman v. Colleton Cty. Sch. Dist., 981 F.2d 152, 156 (4th Cir. 1992)). Likewise, we must also “ensure that matters of internal policy, including mere allegations of favoritism, employment rumors, and other complaints of interpersonal discord, are not treated as matters of public policy.” Goldstein, 218 F.3d at 352.

Set against this backdrop, at least some of Plaintiffs Facebook activity referenced in the Department’s charging document touched on issues of public concern. In particular, Plaintiffs and Grutzmacher’s January 20, 2013, discussion about “liberals]” and “assault liberals]” was, according to an expert report submitted by Plaintiff, a commentary on gun control legislation using “a lexicon that is. extremely common in contemporary American gun culture.” J.A. 566-71. The report maintains that Plaintiffs and Grutzmacher’s exchange reflects a “well-known meta-narrative” under which “ ‘liberal’ ... is a collectivist ideologue, a statist, who believes in the absolute power of government even at the expense of individual autonomy and rights, including an individual’s right to own, carry and use firearms.” J.A. 567-68. Courts have long recognized that “[t]he debate over the propriety of gun control legislation is ... a matter of public concern.” Thomas v. Whalen, 51 F.3d 1285, 1290 (6th Cir. 1995). Consequently, the “liberal” and “assault liberal” post and comment implicated a matter of public concern.

Likewise, Plaintiffs January 23, 2013, post describing the Department’s Social Media Guidelines and expressing concern that those guidelines infringed on Plaintiffs First Amendment rights also addressed a matter of public concern. As explained above, the public employee speech doctrine recognizes the unique role government employees — individuals who “are often in the best position to know what ails the agencies for which they work” — play in keeping the electorate informed about the operations of public employers. See Liverman v. City of Petersburg, 844 F.3d 400, 408 (4th Cir. 2016) (internal quotation marks omitted) (quoting Waters v. Churchill, 511 U.S. 661, 674, 114 S.Ct. 1878, 128 L.Ed.2d 686 (1994) (plurality opinion)). To that end, the interest advanced by the public employee speech doctrine “is as much the public’s interest in receiving informed opinion as it is the employee’s own right to disseminate it.” Roe, 543 U.S. at 82, 125 S.Ct. 521 (emphasis added); see also Garcetti, 547 U.S. at 419, 126 S.Ct. 1951 (“The Court has acknowledged the importance of promoting the public’s interest in receiving the well-informed views of government employees engaging in civic discussion.”); United States v. Nat’l Treasury Emps. Union, 513 U.S. 454, 470, 115 S.Ct. 1003, 130 L.Ed.2d 964 (1995) (“The large-scale disincentive to Government employees’ expression also imposes a significant burden on the public’s right to read and hear what the employees would otherwise have written and said.”). Because the public has an interest in receiving the “informed” opinions of public employees, it necessarily also has an interest in information about policies that circumscribe public employees’ speech and public employees’ opinions of such policies.

However, we also acknowledge that some of the Facebook activity prompting Plaintiffs termination did not implicate matters of public concern. For instance, Plaintiffs “like” of the image depicting an elderly woman raising her middle finger and entitled “for you Chief’ — on the heels of the Department’s investigation into Plaintiffs January 20 and 23 Facebook activity — “amounted to no more than an employee grievance not protected by the First Amendment.” Stroman, 981 F.2d at 157.

When “a single expression of speech” encompasses both matters of public concern and matters of purely personal interest, “the proper approach is to consider [the speech] ... in its entirety.” Id. Whether a series of related posts and “likes” over a several-week period to a dynamic social networking platform — like the posts and “likes” that prompted Plaintiffs termination — constitute “a single expression of speech” is an open question. Rather than resolve that unsettled question — and because at least some of Plaintiffs speech addressed matters of public concern- — we will' “weigh whatever public interest commentary may be contained in [Plaintiffs Facebook activity] against the [Department’s] dual interest as a provider of public service and employer of persons hired to provide that service.” Id. at 158 (citing Pickering, 391 U.S. at 568, 88 S.Ct. 1731). We note that this approach accords with the Department’s decision to terminate Plaintiff, which was based on the “public statements [Plaintiff] made over a number of days (not simply one incident— one day)” and “the totality of the circumstances [of] his violations.” J.A. 119, 242.

2.

Having concluded that at least some of the Facebook activity prompting Plaintiffs termination implicated matters of public concern, we now must determine “whether [Plaintiffs] interest in speaking upon the matter[s] of public concern outweighed the [Department’s] interest in providing effective and efficient services to the public.” McVey, 157 F.3d at 277. “Whether [an] employee’s interest in speaking outweighs the government’s interest is a question of law for the court.” Smith, 749 F.3d at 309. In balancing these interests, we must “consider the context in which the speech was made, including the employee’s role and the extent to which the speech impairs the efficiency of the workplace.” Id. (citing Rankin v. McPherson, 483 U.S. 378, 388, 107 S.Ct. 2891, 97 L.Ed.2d 315 (1987)).

Factors relevant to this inquiry include whether a public employee’s speech (1) impaired the maintenance of discipline by supervisors; (2) impaired harmony among coworkers; (3) damaged close personal relationships; (4) impeded the performance of the public employee’s duties; (5) interfered with the operation of the institution; (6) undermined the mission of the institution; (7) was communicated to the public or to coworkers in private; (8) conflicted with the responsibilities of the employee within the institution; and (9) abused the authority and public accountability that the employee’s role entailed.

Ridpath, 447 F.3d at 317 (citing McVey, 157 F.3d at 278).

To demonstrate that an employee’s speech impaired efficiency, a government employer need not “prove that the employee’s speech actually disrupted efficiency, but only that an adverse effect was ‘reasonably to be apprehended.’ ” Maciariello v. Sumner, 973 F.2d 295, 300 (4th Cir. 1992) (quoting Jurgensen, 745 F.2d at 879); see also Durham v. Jones, 737 F.3d 291, 302 (4th Cir. 2013) (“While [it] is correct that ‘concrete evidence’ of an aetual disruption is not required, there must still be a reasonable apprehension of such a disruption.”). Additionally, this Court has previously recognized that “[a] social media platform amplifies the distribution of the speaker’s message — which favors the employee’s free speech interests — but also increases the potential, in some cases exponentially, for departmental disruption, thereby favoring the employer’s interest in efficiency.” Liverman, 844 F.3d at 407.

For several reasons, we conclude that the Department’s interest in efficiency and preventing disruption outweighed Plaintiffs interest in speaking in the manner he did regarding gun control and the Department’s social media policy. First, Plaintiffs Facebook activity interfered with and impaired Department operations and discipline as well as working relationships within the Department. “[F]ire companies have a strong interest in the promotion of camaraderie and efficiency” as well as “internal harmony [and] trust,” and therefore we accord “substantial weight” to a fire department’s interest in limiting dissension and discord. Goldstein, 218 F.3d at 355; see also Janusaitis v. Middlebury Volunteer Fire Dep’t, 607 F.2d 17, 26 (2d Cir. 1979) (“When lives may be at stake in a fire, an esprit de corps is essential to the success of the joint endeavor. Carping criticism and abrasive conduct have no place in a small organization that depends upon common loyalty — ‘harmony among coworkers.’ ” (quoting Pickering, 391 U.S. at 570, 88 S.Ct. 1731)).

Here, Plaintiffs Facebook activity led to “dissension in the [Department” and resulted in “[n]umerous” conversations between at least one battalion chief and lower-level employees in which the battalion chief “had to[,] ... as a supervisory justify[ ] that it’s okay for anybody to say or do anything against the policy.” J.A. 550. Additionally, at least one lieutenant perceived Grutzmacher’s comment regarding “picking a black one,” which Plaintiff “liked,” as “referr[ing] to a black person.” J.A. 337. Three African-American employees within the Department approached the president of the Phoenix Sentinels — the Howard County affiliate of the International Association of Black Professional Firefighters, a constituent group representing African-American and other minority firefighters — about the posts, with one member stating, “I don’t want to work for [Plaintiff] anymore. I don’t trust him.” J.A. 240. Accordingly, we accord “substantial weight” to Defendants’ interest in preventing Plaintiff from causing further dissension and disharmony.

Second, Plaintiffs Facebook activity significantly conflicted with Plaintiffs responsibilities as a battalion chief. Courts have long recognized that “[t]he expressive activities of a highly placed supervisory ... employee will be more disruptive to the operation of the workplace than similar activity by a low level employee with little authority or discretion.” McEvoy v. Spencer, 124 F.3d 92, 103 (2d Cir. 1997) (citing authorities); see also Brown v. Dep’t of Transp., 735 F.2d 543, 547 (Fed. Cir. 1984) (“[Plaintiffs] position, as a supervisor ... weighs heavily on the agency’s side.”). As a leader within the Department, Plaintiff was responsible for acting as an impartial decisionmaker and “enforcing Departmental policies and taking appropriate action for violations of those policies.” J.A. 105. The record demonstrates that Plaintiffs actions led to concerns regarding Plaintiffs fitness as a supervisor and role model, and concerns that Plaintiffs subordinates would not take him seriously if Plaintiff tried to discipline them in the future. By flouting Department policies he was expected to enforce, Plaintiff “violated the trust [his inferiors] have in him to be in his administrative role as a battalion chief, because people count on him to be fair.” J.A. 226-27. Accordingly, Plaintiffs managerial position also weighs in the Department’s favor.

Third, Plaintiffs speech frustrated the Department’s public safety mission and threatened “community trust” in the Department, which is “vitally important” to its function. J.A. 284-85. “[T]he more the employee’s job requires ... public contact, the greater the state’s interest in firing her for expression that offends her employer.” McEvoy, 124 F.3d at 103 (alteration in original) (internal quotation marks omitted) (quoting Craig D. Singer, Comment, Conduct and Belief: Public Employees’ First Amendment Rights to Free Expression and Political Affiliation, 59 U. Chi. L. Rev. 897, 901 (1992)). “[Fjirefighters ... are quintessential^ public servants. As such, part of their job is to safeguard the public’s opinion of them, particularly with regard to a community’s view of the respect that ... firefighters accord the members of that community.” Locurto v. Giuliani, 447 F.3d 159, 178-79 (2d Cir. 2006).

Here, Plaintiffs January 20 post, made while he was on-duty and in his office, “advocat[ed] violence to certain classes of people” and “advocated using violence to [e]ffect a political agenda.” J.A. 183, 646. Additionally, the Department reasonably was concerned that Plaintiffs Facebook activity — particularly his “like” of Grutz-macher’s comment regarding “black one[s]” — could be interpreted as supporting “racism” or “bias,” J.A. 283, and thereby “interfere with the public trust of [Plaintiff] being able to make fair decisions for everybody,” J.A. 231; see also Locurto, 447 F.3d at 182-83 (“[E]ffective police and fire service presupposes respect for the members of [African-American and other minority] communities, and the defendants were permitted to account for this fact in disciplining the plaintiffs.”). The potential for Plaintiffs statements to diminish the Department’s standing with the public further weighs in favor of the Department.

Fourth, Plaintiffs speech — particularly his “like” of the image depicting a woman raising her middle finger — “expressly disrespected] [his] superiors.” LeFande v. District of Columbia, 841 F.3d 485, 495 (D.C. Cir. 2016). A public employee’s interest in speaking on matters of public concern “does not require that [a public] employer[ ] tolerate associated behavior that [it] reasonably believed was disruptive and insubordinate.” Dwyer v. Smith, 867 F.2d 184, 194 (4th Cir. 1989); see also Connick, 461 U.S. at 154, 103 S.Ct. 1684 (“The limited First Amendment interest involved here does not require that Connick tolerate action which he reasonably believed would disrupt the office, undermine his authority, and destroy close working relationships.”). Here, Plaintiffs “continued unrestrained conduct” after already being reprimanded “ ‘smack[ed] of insubordination.’ ” See Graziosi v. City of Greenville, 775 F.3d 731, 740 (5th Cir. 2015) (quoting Nixon v. City of Houston, 511 F.3d 494, 499 (5th Cir. 2007)). Employees within the Department viewed Plaintiffs “like” of Donnelly’s Facebook picture of an older woman with her middle finger raised as a “sparring match between the battalion chief and an assistant chief [that publicly] escalated to the level of telling the fire chief to fuck off.” J.A. 297-98. Therefore, the disrespectful and insubordinate tone of Plaintiffs relevant Facebook activity also weighs in the Department’s favor.

Lastly, we observe that the record is rife with observations of how Plaintiffs Face-book activity, subsequent to Assistant Chief Jerome’s request that Plaintiff remove any offending posts, disregarded and upset the chain of command upon which the Department relies. Fire departments operate as “paramilitary” organizations in which “discipline is demanded, and freedom must be correspondingly denied.” Maciariello, 973 F.2d at 300. Accordingly, we afford fire departments “greater latitude ... in dealing with dissension in their ranks.” Id. Although the Department’s status as a paramilitary organization is not dispositive of the Pickering analysis, see Liverman, 844 F.3d at 408, it does further tip the scale in the Department’s favor.

By contrast, though we recognize that at least some of Plaintiffs speech addressed matters of public concern — gun control and the Department’s Social Media Guidelines — the public’s interest in Plaintiff speaking on those matters of public concern does not outweigh the significant governmental interests set forth above. In particular, we have recognized that a public safety official’s interest in speaking on matters of public concern is sufficient to outweigh the compelling government interests set forth above when, for example, the official’s speech is “grounded ... in specialized knowledge [or] expressed] a general ‘concern about the inability of the [Department] to carry out its vital public mission effectively.’ ” Liverman, 844 F.3d at 410 (third alteration in original) (quoting Cromer v. Brown, 88 F.3d 1315, 1325-26 (4th Cir. 1996)). For instance, in Liver-man, we found statements by veteran police officers raising “[sjerious concerns regarding officer training and supervision” were sufficient to overcome the government’s interest in preventing workplace disruption. Id. at 411; see also Durham, 737 F.3d at 302 (“Serious, to say nothing of corrupt, law enforcement misconduct is a substantial concern that must be met with a similarly substantial disruption in the calibration of the controlling balancing test.”); Goldstein, 218 F.3d at 355 (“[T]he substance of the public concern included allegations that some emergency personnel lacked required training and certifications; that the leadership of the company was overlooking violations of safety regulations; and that the conduct of crewmem-bers was jeopardizing the safety of the crew and of the public. These allegations were a matter of the highest public concern, and as such, they were entitled to the highest level of First Amendment protection.” (footnote omitted)). Plaintiffs Face-book activity is not of the same ilk as the speech at issue in Liverman, Durham, and Goldstein, which this Court found sufficient to outweigh the types of significant governmental interests at issue here.

In sum, we conclude the Department’s interest in workplace efficiency and preventing disruption outweighed the public interest commentary contained in Plaintiffs Facebook activity. In reaching this conclusion, we emphasize that this balancing test is a “particularized” inquiry. Goldstein, 218 F.3d at 356. Therefore, although we resolve the balancing test in favor of the Department, we expressly caution that a fire department’s interest in maintaining efficiency will not always outweigh the interests of an employee in speaking on matters of public concern. See id.

Because the Department’s interest in managing its internal affairs outweighs the public interest in Plaintiffs speech, we need not reach the third prong of the McVey test. As such, we conclude that the district court properly granted summary judgment in favor of Defendants on Plaintiffs First Amendment retaliation claim.

B.

Plaintiff also contends that the district court improperly dismissed his facial challenge to the Department’s Social Media Guidelines and Code of Conduct as moot. When a plaintiff challenges a government policy “for vagueness or overbreadth, the Supreme Court has concluded that [he] ha[s] standing to assert the rights of third parties whose protected speech may have been impermissibly curtailed by the challenged prohibition, even though as applied to the plaintiff[ ], the [policy] only curtailed unprotected expression.” Brandywine, Inc. v. City of Richmond, 359 F.3d 830, 835 (6th Cir. 2004) (citing Young v. Am. Mini Theatres, Inc., 427 U.S. 50, 59 n.17, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976)). Because we find the district court properly granted Defendants’ motion for summary judgment against Plaintiff, we decline to review Plaintiffs as-applied facial challenge and review only the district court’s determination regarding Plaintiffs third-party facial challenge.

“We review the district court’s mootness determination de novo.” S.C. Coastal Conservation League v. U.S. Army Corps of Eng’rs, 789 F.3d 475, 482 (4th Cir. 2015). A claim becomes, moot “when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979) (internal quotation marks omitted) (quoting Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969)).

On appeal, Defendants contend that the district court’s mootness finding was proper because the Department has repealed the previous Social Media Guidelines and Code of Conduct in operation at the time of Plaintiffs termination; the revised policies did not include any of the provisions Plaintiff challenged in the prior iterations of the policies; and the Department “did not intend to readopt or' enforce the challenged prior versions of either policy.” Appellees’ Br. at 17. Conversely, Plaintiff argues that the Department’s subsequent actions have not mooted his facial challenge, as the Department is free to “re-enact the unconstitutional provisions of the old policies.” Appellant’s Br. at 36. We reject Plaintiffs contention.

“It is well established that a defendant’s ‘voluntary cessation of a challenged practice’ moots an action only if ‘subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.’ ” Wall v. Wade, 741 F.3d 492, 497 (4th Cir. 2014) (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 189, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000)). Here, in addition to adopting a new Social Media Policy and revised Code of Conduct, current Fire Chief Butler submitted a sworn affidavit that, “[a]s head of the Fire Department, [he] fully intend[s] to operate under the newly issued [policies] and do[es] not intend to re-issue the original versions.” J.A. 924. Additionally, Defendants’ counsel declared at oral argument that the Department has no intent to reenact the offending policies. And from the record, we discern “no hint” that the Department has any intention of reinstituting the prior policies. See Troiano v. Supervisor of Elections, 382 F.3d 1276, 1284-85 (11th Cir. 2004). Based on these formal assurances and the absence of any evidence to the contrary, Defendants have met their “heavy burden of persuading]” this Court that they will not revert to the challenged policies. Wall, 741 F.3d at 497 (alteration in original) (internal quotation marks omitted) (quoting Laidlaw, 528 U.S. at 189, 120 S.Ct. 693); see Winsness v. Yocom, 433 F.3d 727, 736 (10th Cir. 2006) (finding that public officials’ alteration of challenged policy, coupled with sworn affirmation that they would not revert to policy previously in effect, rendered plaintiffs challenge moot). Thus, the district court properly dismissed Plaintiffs third-party facial challenge as moot.

III.

For these reasons, the judgment of the district court is

AFFIRMED.

      . Butler was appointed as Fire Chief in January 2015, following Fire Chief Goddard’s retirement.

      . We reproduce the Facebook posts and comments as they appear in the record and without the benefit of editing.

      . We observe that the act of "liking” a Facebook post makes the post attributable to the "liker,” even if he or she did not author the original post. See Bland v. Roberts, 730 F.3d 368, 386 (4th Cir. 2013), as amended (Sept. 23, 2013) ("[Chicking on the like’ button literally causes to be published the statement that the User likes' something, which is itself a substantive statement.... That a user may use a single mouse click to produce that message ... instead of typing the same message with several individual key strokes is of no constitutional significance.”).
      Accordingly, for ease of reference, we refer to Plaintiff's various Facebook posts, comment replies, and "likes,” collectively, as Plaintiff's "Facebook activity” or ."speech.”

      . Although the district court concluded that Plaintiff's January 23 and February 17 Face-book activity did not address matters of public concern, Buker, 2015 WL 3456750, at *13-14. “[o]ur review is not limited to the grounds fee district court relied upon, and we may affirm 'on any basis fairly supported by fee record,' ” Lawson, 828 F.3d at 247 (quoting Eisenberg v. Wachovia Bank, N.A., 301 F.3d 220, 222 (4th Cir. 2002)).

      . Although Plaintiff maintains that this testimony is inadmissible hearsay and that the district court should not have considered it, the district court did not rely on the statement for the truth of the matter asserted, but relied on it to illustrate the disruptive effect of Plaintiff’s speech. See United States v. Pratt, 239 F.3d 640, 644 (4th Cir. 2001) (finding that an out-of-court statement not intended to prove the truth of the matter asserted is not hearsay and, thus, is not excluded by the hearsay rule). Thus, the district court did not err in considering this testimony.

      . By identifying speech grounded in a public employee's specialized knowledge or raising questions about public safety as examples of public employee speech warranting the highest level of First Amendment protection, we do not suggest that those are the only two categories of public employee speech warranting such protection.