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By PORAC | November 7, 2022 | Posted in PORAC LDF News

Right to Post Controversial Statements on Social Media Upheld Again

Messing Adam & Jasmine LLP

In Hernandez v. City of Phoenix (9th Cir. 2022) 43 F. 4th 966, issued in early August of this year, the Ninth Circuit Court of Appeals reversed a federal district court order dismissing a police sergeant’s lawsuit against his employer for violating his First Amendment rights. The sergeant had been disciplined for posting anti-Muslim comments on social media. Coming on the heels of similar decisions from the court, Hernandez reflects that courts will no longer simply defer to a public agency’s judgment that its employees’ comments on social media jeopardize its mission and thus warrant punishment. Employers will have to make a stronger case that employees’ speech on social media should be strictly regulated.

Law enforcement agencies have responded to the rise of social media, which serve as a marketplace for ideas and expression, by trying to limit employees’ ability to post controversial commentary on social networks. Courts have been slow to adapt to these developments. Employers’ efforts in this regard have been extensive and, at times, arguably excessive. They have disciplined employees for speech with only a loose connection to the job. And they have used vague standards to judge the impropriety of social comments, which gives them significant leeway to act. For example, many departments prohibit the posting of any social commentary that will “embarrass” or “discredit” the department.

Over the past decade, federal courts in the Ninth Circuit have tended to dismiss employees’ lawsuits challenging these rules despite the ramifications they have on employees’ First Amendment rights. By doing so, they have upheld employers’ rights to unilaterally determine that such speech is harmful to the department and to discipline employees accordingly.

The worm may, however, be slowly turning. Last year, in Moser v. Las Vegas Metropolitan Police Department (9th Cir. Jan. 12, 2021) 984 F. 3d 900, the court upheld the First Amendment right of a police officer to post his own commentary about the job on social media while off duty. (Please see our article regarding this case in the March 2021 issue of PORAC Law Enforcement News.) In a more recent decision, Riley’s American Heritage v. Elsasser (9th Cir. 2022) 32 F. 4th 707, the court reversed a federal district court’s ruling dismissing an independent contractor’s lawsuit against a school district for canceling school field trips to the contractor’s farm over controversial comments he made on his personal Twitter account. Though this case pertains to a school district, the district’s actions were quite similar to those of law enforcement agencies. The reason it gave for stopping the field trips was that the contractor’s speech was disruptive to the school’s operations. The court ruled against the district, however, finding that it failed to establish that its interests in preventing disruption because of parental complaints over the contractor’s social media posts were “so substantial that they outweighed [the contractor]’s free speech interests as a matter of law” (Id. at 726).

The court’s ruling in Hernandez, following the above decisions, signals that it will require employers to provide evidence of how their employees’ internet activities are discrediting or disrupting their operations.

The matter at issue in Hernandez concerned certain provisions of the Phoenix Police Department (PPD) social media policy, which prohibits any speech that “are [sic] detrimental to the mission and functions of the Department, that undermine [sic] respect or public confidence in the Department, cause [sic] embarrassment to the Department or City, discredit [sic] the Department or City, or undermine [sic] the goals and mission of the Department or City” (Hernandez, 43 F. 4th at 974). In 2013 and 2014, while off duty, Sergeant Juan Hernandez posted several comments to his Facebook account disparaging the religion of Islam and its followers. Upon learning of these posts, the PPD initiated an investigation to determine whether they ran afoul of the Department’s social media policy. The investigators concluded that Hernandez’s social media posts violated the above provisions. Hernandez faced a range of discipline, from a suspension of 40 hours without pay up to termination.

Before any punishment was imposed, however, Hernandez sued the City of Phoenix, claiming that the Department was retaliating against him for exercising his right to free speech, and that the Department’s social media policy on its face was “invalid” under the First Amendment because it is “vague and overbroad” (Id. at 975). At the initial stages of the litigation, before the trial phase and thus before either party could introduce any meaningful evidence to prove their case, the City moved to dismiss the case on the basis that Hernandez failed to state a legitimate claim. The District Court ruled in its favor, rejecting Hernandez’s claims. First, the retaliation claim failed because, as the District Court stated, none of his posts addressed a matter of public concern, which meant they were not entitled to constitutional protection (Id.). Second, the Department’s policy was not overbroad, in the view of the court, because it “prohibited only those categories of speech that could reasonably be expected to disrupt the Department’s mission and operations — ends that the [U.S.] Supreme Court has held are constitutionally permissible” (Id. at 975).

On appeal, the Ninth Circuit reversed the lower court. As to the retaliation claim, the court held that the Facebook posts were matters of public concern. Looking at the content of the posts, the court determined that they did not concern “internal workplace” matters (Id. at 977-978). Instead, they “addressed matters of social or political concern that would be of interest to others outside the [PPD]” (Id.). It is irrelevant that only “a relatively small segment of the general public” might have been interested in the subject” (Id. at 978). The court also found that the form and context of the posts indicated that they were public. Hernandez posted each of the items on his own time, outside the workplace, using his personal Facebook profile. The posts were not private, and thus could be seen by members of the general public. And they addressed issues of political and social concern, including government spending, immigration, cultural assimilation, etc.

Finding that Hernandez’s posts were of public concern, and thus potentially protected under the U.S. Constitution, the Ninth Circuit next turned to whether the Department had adequate justification for imposing discipline, which requires the application of a balancing test. Under this test, which is named after the U.S. Supreme Court decision that first applied the test, Pickering v. Board of Education (1968) 391 U.S. 563, a court must determine whether the employer has adequately shown whether its interest in preventing disruption in the workplace from the speech outweighs the employee’s First Amendment right to free speech. The court stated that even though it appeared likely that Hernandez’s posts could impede the performance of his job duties and interfere with the PPD’s ability to effectively carry out its mission, it could not properly apply this test, because “no evidence of actual or potential disruptive impact caused by Hernandez’s posts was properly before the Court at this [early] stage of the proceedings” (Id. at 979). It therefore remanded the case to the District Court for further factual development.

As to the policy being overbroad, the Ninth Circuit first acknowledged that law enforcement agencies “have a strong interest in maintaining a relationship of trust and confidence with the communities they serve, which justifies the [department’s] policy’s restriction on speech that would ‘undermine respect or public confidence in the Department’” (Id. at 981). Yet, while this interest passes constitutional muster, the PPD may not justify prohibiting employees’ speech merely because it “might find that speech embarrassing or discrediting” (Id.). As the court noted, “virtually all speech that lies at the core of First Amendment protection in this area could be expected to embarrass or discredit the Department in some way” (Id.). “[F]or example, speech exposing police misconduct or corruption” — which is important and should therefore be protected — would be swept up in the Department’s policy simply based on the fact that it is embarrassing to the Department (Id.). Accordingly, the Ninth Circuit concluded that Hernandez’s challenge to the policy’s clauses prohibiting speech that would “cause embarrassment to” or “discredit” the Department should not be dismissed at the motion to dismiss stage of the litigation, when the factual record is incomplete (Id.).

Notwithstanding the above, the court was careful to point out that the PPD may be able to produce evidence at a later stage in the litigation that provides some other justification beyond mere embarrassment to the Department for prohibiting the speech (Id.). For example, the PPD could potentially show that Hernandez’s speech could reasonably be expected to disrupt the workplace, hinder the Department’s mission or undermine the public’s confidence in and respect for the Department. In that case, the Department would have a legitimate reason for curtailing his speech. It further acknowledged that while employee speech that reveals “wrongdoing or corruption” within the public agency “lies at ‘the apex of the First Amendment,” Hernandez’s speech “occup[ied] a much lower rung on the First Amendment hierarchy, and indeed [it] touched on matters of public concern ‘in only a most limited sense.’” Thus, the court is setting the bar low for the PPD to prove its case that the social media posts were disruptive to its operations and thus should be prohibited.

Hernandez also challenged the Department’s policy providing that employees may not divulge information gained while in the performance of their official duties (Id. at 981–982). “Although the Department has a strong interest in prohibiting the disclosure of confidential information, such as information that could jeopardize ongoing investigations, the challenged provision sweeps much more broadly” (Id. at 982). As the court reasoned, “public employees are uniquely positioned to expose wrongdoing or corruption within their agencies precisely because they acquire information while on the job to which the public otherwise lacks access” (Id.). Thus, such a policy would prohibit speech that warrants the strongest First Amendment protection. For that reason, the provision challenged here “must be tailored to protect information the government has a legitimate interest in keeping confidential” (Id.). Thus, the court upheld Hernandez’s challenge here, ruling that it may go forward. However, it noted that the Department may yet produce evidence in a later stage of the litigation to establish that its policy was “appropriately tailored,” which would justify dismissing Hernandez’s claim.
As for Hernandez’s other challenges to the Department’s social media policy, the Ninth Circuit affirmed their dismissal by the District Court.

One of the main takeaways from this decision, as well as those from the Moser and Riley’s American Heritage cases, is that law enforcement agencies disciplining employees for social media use must produce sufficient evidence that shows the employee’s speech has or will disrupt the workplace. Based on these decisions, courts in the Ninth Circuit will no longer simply defer to these agencies’ judgment that employees’ social media posts are embarrassing and thus should be stopped.

Nevertheless, we urge you to take caution, as these decisions may not ultimately provide greater protections for employees’ speech. As the Hernandez court repeatedly pointed out during its analysis, while it reversed the dismissal of Hernandez’s claims, it is still possible that the City may succeed in defending itself against his challenges. At a later stage in the litigation, it may provide sufficient evidence to justify prohibiting Hernandez’s Facebook posts. Given that First Amendment jurisprudence recognizes public agencies’ strong interest in avoiding disruption to their operations, this bar could prove to be quite low.

Another takeaway from the decision is that social media policies that broadly prohibit postings that “embarrass” or “discredit” are constitutionally suspect after Hernandez. Policies should be rewritten to recognize that some speech that departments may find embarrassing or discrediting nevertheless enjoys robust free speech protection.

About the Authors
Gregg Adam is a partner with the law firm Messing Adam & Jasmine LLP. Gregg has worked with peace officer associations for over 20 years. He is a founding partner of the firm, which predominately represents public-sector unions and their members in labor relations. Gregg and his partners and the attorneys at Messing Adam & Jasmine LLP are PORAC LDF panel attorneys.

Matthew Taylor is an associate at Messing Adam & Jasmine LLP. He specializes in public-sector labor law representing police officers, firefighters and other public employees in disciplinary and termination proceedings, arbitrations, civil litigation and collective bargaining. In addition to his legal experience, Matthew draws from his background in law enforcement and investigations. He served as a police officer in NYPD’s 67th Precinct in East Flatbush, Brooklyn. He was also an investigator for the City of New York and a legal intern at the U.S. Attorney’s Office in D.C.