• Public Employees, the First Amendment, and Social Media

Whether or not the First Amendment will protect a public employee from being disciplined for something published in Social Media depends upon a balancing of the nature of the statement and the circumstances of its publication with the affected public agency’s right to avoid disruption and maintaining workforce discipline.

Officer Charles Moser was a former Navy Seal and current Las Vegas Metropolitan Police Department officer.  Beginning in 2006, Officer Moser was a SWAT team sniper and assistant team leader.  However, on December 17, 2015, Officer Moser made the unfortunate (as it turned out) decision to post on his Facebook account a comment about a shooting and wounding of a fellow officer.  Officer Moser’s Facebook comment read: “Thanks to a Former Action Guy (FAG) and his team we caught that asshole. . . It’s a shame he didn't have a few holes in him. . .” (The “FAG” comment was not used in a derogatory sense, and was not an issue in this case.)  Officer Moser posted this comment while off duty, leaving it up for about two months before deleting it.  However, someone read it and “anonymously” (of course) filed a complaint with Metro’s Internal Affairs Department, prompting an internal investigation.  Admitting to Internal Affairs the inappropriateness of his comment, Officer Moser explained that he only intended to express his frustration that the suspect had “basically ambushed one of our officers” and that “the officer didn’t have a chance to defendant himself” by shooting back. Despite his claim of an innocent intent, Officer Moser was transferred out of SWAT and put back on patrol; an action that resulted in a pay cut.  His supervisors’ concern was that his comment showed that he had become “a little callous to killing.” It was also noted that the department’s snipers “are held to a higher standard,” being faced with difficult and stressful situations, and that his comment could be used against him as in-court impeachment evidence should he ever have to use deadly force in the future. It was therefore believed to be necessary to relieve him of his SWAT responsibilities.  Officer Moser filed a grievance with the Labor Management Board, which was denied.  He therefore filed a civil action in federal court, seeking to get his SWAT job back. After an evidentiary hearing, the district court granted summary judgment in favor of the defendant City of Las Vegas.  Officer Moser appealed.

The Ninth Circuit Court of Appeal reversed, remanding the case back to the district trial court for further hearings.  The issue, of course, is where (and how) to draw the line between the free speech rights of government employees with the government’s interest in avoiding disruption and maintaining workforce discipline. The United States Supreme Court has dealt with this problem before and has set out the factors that must be considered, establishing a “balancing test.”  (See Pickering v. Board of Education (1968) 391 U.S. 563.)  Under Pickering, a plaintiff (such as Officer Moser in this case) must first establish that (1) he spoke on a matter of public concern, (2) he spoke as a private citizen rather than a public employee, and (3) the relevant speech was a substantial or motivating factor in the adverse employment action.  If the plaintiff is able to establish this prima facie case, then the burden of proof shifts to the government to show that (4) it had an adequate justification for treating its employee differently than other members of the general public, or (in the disjunctive) (5) it would have taken the adverse employment action even absent the protected speech.  If the government does not meet its burden, then the First Amendment protects the plaintiff’s speech as a matter of law.  (See Barone v. City of Springfield (9th Cir. 2018) 902 F.3rd 1091, 1098.) In reviewing these factors as they apply here, the Ninth Circuit reversed the district court’s summary judgment ruling only because there existed factual disputes which had not yet been resolved. 

(1)  A Matter of Public Concern:  The parties did not dispute that Officer Moser’s comment addressed an issue of “public concern.”  An issue is of “public concern” if it “relates to any matter of political, social or other concern to the community, . . . (or) is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public.”  Police shootings tend to fall into this category. 

(2) Speaking as a Private Citizen:  The parties also did not dispute the fact that Officer Moser spoke as a private citizen, and not as a representative of the Las Vegas Metropolitan Police Department.  “Statements are made in the speaker’s capacity as citizen if the speaker had no official duty to make the questioned statements, or if the speech was not the product of performing the tasks the employee was paid to perform.”  In this case, Officer Moser was home and off duty, using his personal Facebook account. 

(3) Officer Moser’s Comment as a Motivating Factor in his Demotion:  It was similarly stipulated between the parties that Officer Moser’s Facebook posting was the reason he was removed from the SWAT team, with his supervisors concerned that his comment was evidence of Officer Moser “grow(ing) callous(ness) to killing.”  It was also recognized that his comment could be used against him in court should he ever need to use deadly force as a sniper.

With factors (1), (2), and (3) out of the way, the burden shifted to the Metro Police Department to produce evidence supporting factors (4) or (5). Metro argued only that factor (4) applied; i.e., that it had adequate justification for treating Officer Moser as they did.  In evaluating factor (4), the Pickering balancing test recognizes that a government employer has “broader discretion to restrict speech when it acts in its role as employer, but the restrictions it imposes must be directed at speech that has some potential to affect the entity’s operations.” On this issue, the Court held that the district Court failed to recognize that several factual disputes remained unresolved.  First, the meaning of Officer Moser’s comment was not determined.  Officer Moser argued that he only intended to say that the wounded officer should have had the opportunity to get off some defensive shots.  The Metro Police Department, on the other hand, argued that Officer Moser’s comment was meant to advocate the unlawful use of deadly force; i.e., that the officers who captured the suspect would have shot him in retaliation for his earlier shooting of a police officer.  Under the Pickering balancing test, the former (Officer Moser’s version) is entitled to stronger First Amendment freedom of speech protections than that latter; i.e., when an officer advocates the unlawful use of deadly force.  So it is important for the trial court to make a factual determination of what Officer Moser was intending to say in his Facebook comment. Secondly, there remains an unresolved factual dispute as to whether the Metro Police Department provided any evidence of predicted disruption to its operations.  This issue is relevant to the strength of Metro’s interest in efficiency and employee discipline.  The impact of an employee’s speech on the government agency’s operations cannot be resolved until it is determined whether the statement in issue in fact impairs discipline by the agency’s superiors or harmony among its co-workers, whether it has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, whether it impedes the performance of the speaker’s own duties, and/or interferes with the regular operation of the law enforcement agency.  The district court failed to make any findings relative to these potential factual disputes.  “In sum, material questions of fact remain as to whether (Officer) Moser’s comment would likely disrupt Metro’s workforce or its reputation. . . . Put differently, Metro has produced no evidence to establish that its interests in workplace efficiency outweigh Moser’s First Amendment interests.” For these reasons, the case had to be remanded for further evidentiary hearings.