• First Amendment Freedom of Speech and Public Employees
• The Use of Social Media by Public Employees

The use of social media by a public employee to denigrate minority religious groups may potentially subject the employee to internal discipline by his employer.

Juan Hernandez is a sergeant on the Phoenix Police Department.  One of Sgt. Hernandez’s off-duty pursuits was to maintain a personal social media Facebook account on which he often would post news articles and “memes” created by others.  (A “meme,” by the way, is defined as either (1) “an idea, behavior, style, or usage that spreads from person to person within a culture,” or (2) “an amusing or interesting item—such as a captioned picture or video—or genre of items that is spread widely online especially through social media.”  I had to look it up.)  Although Sgt. Hernandez never specifically identified himself on Facebook as a Phoenix police officer, some of his posts showed him in uniform making his employment obvious to anyone who might care.  Among his posts were included pieces dealing with the Muslim religion.  In 2019, a national organization called the “Plain View Project” (“PVP”), which maintains a database of often racially or culturally motivated Facebook posts made by law enforcement officers from across the country, picked up on Sgt. Hernandez’s posts.  The PVP identified eleven of Sgt. Hernandez’s posts that could be interpreted as reflecting biases against racial or religious minorities, or that at least contained contents that might be offensive to members of such groups. When the PVP publicized its findings, it generated a firestorm of public criticism of the Phoenix Police Department and considerable negative media attention.  The Phoenix Police Department has a written policy governing its employee’s use of social media.  Among other things, the policy prohibits employees from engaging in speech on social media that could be “detrimental to the mission and functions of the Department,” “undermine respect or public confidence in the Department,” or “impair working relationships” of the Department.  More specifically, Operations Order 3.27, entitled “Social Media Use Policy,” establishes a comprehensive set of regulations and guidelines that are intended to apply to the use of social media both on and off the job.  Under a subsection dealing with an employee’s “personal use” of social media, the policy includes two general admonitions:  (1) “Department personnel are cautioned their speech and related activity on social media sites may be considered a reflection upon their position, and, in some instances, this Department,” and (2) “Personal social media activity must not interfere with work duties or the operation of the Department.”  The PVP’s complaint about Sgt. Hernandez’s posts triggered an internal investigation conducted by the Phoenix Police Department’s Professional Standards Bureau.  Of the eleven posts listed by the PVP, the Department’s investigation eventually focused on only four of them, all of which targeted the Muslim religion. Specifically (without going into a lot of detail which, if you’re interested, are contained in the written decision itself), Sgt. Hernandez’s posts included: (1) An allegation that the most common name for a convicted gang rapist in England is “Muhammad” (showing mugshot-like photos of apparent Muslim males). (2) A “meme” (there’s that term again) concerning an interaction between a taxicab driver and a Muslim passenger, with the cab driver telling the Muslim to get out of his cab and “wait for a camel” if, as the Muslim claimed when he asked the driver to turn off his radio, devout Muslims weren’t allowed to engage in any activities that didn’t exist “in the time of the prophet.” (3) Another meme entitled, “Recent Contributions to Science by Islam,” depicting photos of four apparent Muslim men to whom quotes are attributed, each describing very questionable “contributions to science.” (e.g., “DNA tests should not be used as evidence in rape cases.”).  (4) An article claiming that the President Obama Administration cut Military pensions while sending $300 million to Muslims overseas to help pay for their mortgages.  Despite Sgt. Hernandez’s claim that he posted these items in question merely “to drive discussion about issues that were in the news at the time,” the Department concluded that his posts violated policy by denigrating Muslims and Islam.  When the Department took steps to discipline him, Sgt. Hernandez sued the Department in federal court, alleging (1) that the Department retaliated against him for exercising his First Amendment right to freedom of speech and (2) that the Department’s policies were unconstitutionally vague and overbroad.  The federal district (trial) court eventually dismissed the suit in its entirety.  Sgt. Hernandez appealed.

In a long (28 page) complicated ruling, where the Ninth Circuit Court of Appeal acknowledged that the legal standards remain “somewhat hazy,” the Court reversed in part and affirmed in part.  

(1)  First Amendment Freedom of Expression:  The United States Supreme Court has attempted to set out the legal standards on this issue, establishing a balancing test in its landmark case decisions of Pickering v. Board of Education of Township High School District (1968) 391 U.S. 563 and Mt. Healthy City Board of Education v. Doyle (1977) 429 U.S. 274.  What the courts are obligated to do is strike “a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern, and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” (Pickering, at p. 568.) Five factors must be considered: “(1) whether the plaintiff spoke on a matter of public concern; (2) whether the plaintiff spoke as a private citizen or public employee; (3) whether the plaintiff’s protected speech was a substantial or motivating factor in the adverse employment action; (4) whether the state had an adequate justification for treating the employee differently from other members of the general public; and (5) whether the state would have taken the adverse employment action even absent the protected speech.”  (See Eng v. Cooley (9th Cir. 2009) 552 F.3rd 1062, 1070.)  In analyzing the First Amendment issues here, the Court found only the first, second, and fourth factors to be in issue. 

First Factor; A Matter of Public Concern:  The plaintiff government employee (Sgt. Hernandez, in this case) bears the initial burden of showing that he spoke on a matter of public concern, and that he did so in his capacity as a private citizen, rather than as a public employee. The burden then shifts to the government employer (i.e., the Phoenix Police Department) to show that it had an adequate justification for punishing the employee for his speech. To sustain its burden, the employer must show that “its own legitimate interests in performing its mission” outweigh the employee’s right to speak freely.  Here, the Court determined that Sgt. Hernandez’s Facebook posts did in fact address matters of social or political concern that would be of interest to others outside the Phoenix Policed Department, overruling the district court on this issue.  The fact that Sgt. Hernandez’s posts expressed some level of hostility towards, and sought to denigrate or mock, a major religious faith and its adherents, is irrelevant. (Citing Snyder v. Phelps (2011) 562 U.S. 443, 454-455.) “Speech that expresses hostility toward racial or religious minorities may be of particularly low First Amendment value at the next step of the Pickering balancing test . . . , but its distasteful character alone does not strip it of all First Amendment protection.”  The Court thus found this first factor to be satisfied. 

Second Factor; Capacity as a Private Citizen:  The Court did not discuss this factor, noting only that “(n)o one contests that Hernandez spoke in his capacity as a private citizen rather than as an employee of the Phoenix Police Department when he made the posts in question.”

Fourth Factor; Phoenix’s Justification for Punishing Sgt. Hernandez for Otherwise Protected Speech:  Noting that the district court judge failed to rule on this issue, dismissing Sgt. Hernandez’s First Amendment retaliation claim based solely on its negative finding as to Factor One (above), the Court remanded the case for a consideration of this factor.  The Court did note, however (in a not-so-gentle hint to the district court), that “it seems likely that Hernandez’s posts could impede the performance of his job duties and interfere with the Phoenix Police Department's ability to effectively carry out its mission, . . .”  The Court volunteered a few more comments about the nature of Sgt. Hernandez’s Facebook posts, indicating how it is likely to rule when later provided with a complete record.  Referring to Sgt. Hernandez’s posts as having a “comparatively low value” from a First Amendment standpoint, the Court noted that “Hernandez’s Facebook posts occupy a much lower rung on the First Amendment hierarchy, and indeed they touched on matters of public concern ‘in only a most limited sense.’” (citing Connick v. Meyers (1983) 461 U.S. 138, 154.)  The Court further noted that “(o)n the other side of the scale, a police department’s determination that an officer’s speech warrants discipline is afforded considerable deference, . . . (P)olice departments may permissibly consider the special status officers occupy in the community when deciding what limitations to place on officers’ off-duty speech.”  “Speech by a police officer that suggests bias against racial or religious minorities can hinder that officer’s ability to effectively perform his or her job duties and undermine the department's ability to effectively carry out its mission.  (Citing Locurto v. Giuliani (2nd Cir. 2006) 447 F.3rd 159, 182-183.)  Due to the lack of a complete record from the district court on these issues, however, the Court reversed the district court’s dismissal of Sgt. Hernandez’s First Amendment retaliation claim and remanded the case back to the district court for further evidence. 

(2)  Facial Validity of the Phoenix Police Department’s Social Media Policy:  As a second part of Sgt. Hernandez’s lawsuit, he challenged certain provisions of the Department’s social media policy as facially invalid under the First Amendment based on the theory that the policies, as written, are “vague and overbroad.”  The district court disagreed with Sgt. Hernandez, and dismissed this portion of the lawsuit outright.  The Ninth Circuit, on appeal, affirmed in part and reversed in part, on these issues.  Employing a “modified Pickering balancing analysis,” a court must ask itself whether the challenged restrictions as written could reasonably be interpreted to apply to an employee’s speech in his or her capacity as a private citizen on matters of public concern.  If it does, the court is then required to ask whether the government has an adequate justification for treating its employees differently from other members of the general public.  The Phoenix Police Department did not dispute that the challenged provisions apply to an employee’s speech on matters of public concern made in an employee’s capacity as a private citizen, outside the scope of the officer’s official duties.  The only issue here is whether the Department has provided an adequate justification for the restrictions.  Despite an incomplete record provided by the trial court, the Ninth Circuit found the issue an easy one to decide, noting the following: 

“(G)overnment employers have a strong interest in prohibiting speech by their employees that undermines the employer’s mission or hampers the effective functioning of the employer's operations. (Citations) That interest justifies the (challenged) policy’s restrictions on social media posts that are ‘detrimental to the mission and functions of the Department’ or which ‘undermine the goals and mission of the Department or City.’ Police departments also have a strong interest in maintaining a relationship of trust and confidence with the communities they serve, (Citation), which justifies the policy’s restriction on speech that would ‘undermine respect or public confidence in the Department.’” 

The Court concluded that based upon these standards, it could not say that the Phoenix Police Department’s social media policies were unconstitutionally overbroad.  The district court, therefore, properly dismissed this cause of action.  However, as to the Department’s policies prohibiting speech that might “cause embarrassment to,” or might “discredit” the Department (e.g., the provision that states: “Employees are prohibited from using social media in a manner that would cause embarrassment to or discredit the Department in any way.”), the Court found that this allegation should not have been dismissed by the trial court at the pretrial summary judgment stage.  Sgt. Hernandez, if given the opportunity, may be able to provide evidence that the “embarrassment” and/or “discredit” prohibitions are in fact vague and overbroad.  So dismissal of these allegations, at least at this stage, was inappropriate.  The matter was remanded for more evidence on this issue.  Lastly, Sgt. Hernandez also challenged the constitutionality (on “overbreadth” grounds) of the social media policy which provides as follows: “Department personnel may not divulge information gained while in the performance of their official duties.”  The district court had dismissed this allegation.  The Ninth Circuit ruled that the district court’s dismissal was inappropriate. Although the Department has a strong interest in prohibiting the disclosure of “confidential information,” such as information that could jeopardize an ongoing investigation, the challenged provision sweeps much more broadly.  It prohibits the disclosure of any information gained while on the job.  As noted by the Court, “(a) policy that prohibits public employees from divulging any information acquired while on the job would silence speech that warrants the strongest First Amendment protection in this context.”  An example might be where an officer observes “wrongdoing or corruption” within the officer’s own agency.  Prohibiting the divulgence of such knowledge is constitutionally overbroad.  The case was remanded back to the district court for further evidence on this issue as well.

If all the above has left you completely confused as to what the rules are concerning what you can and cannot publicize on your Facebook or other social media accounts, you are in good company.  The courts aren’t even sure how to handle this issue, applying the so-called Pickering factors that, in any particular case, can be (and consistently are) interpreted differently.  Referring to the applicable rules as “somewhat hazy,” the Ninth Circuit does not even try to convince us that the case law on this issue is anything other than inconsistent at best.  But what you need to get from all this is the realization that your First Amendment freedom of speech protections are not absolute.  Recognizing this, my suggestion to you in order to stay out of trouble is to just use a little common sense.  In this case, for Sgt. Hernandez—who is professionally and ethically bound to enforce the law in the field without favor or prejudice—to publicize “muses” and other posts that make fun of—and perhaps call into question the honestly and/or integrity of—a particular religion and those who practice it, was not a wise exercise of common sense.  Although Sgt. Hernandez did not identify himself as a Phoenix police officer in his posts, other Facebook posts showed him in uniform making the connection obvious.  That was all it took to call into question his possible prejudices as a police officer and how he might be applying the law when in the field.  That the Phoenix Police Department was concerned with the perception he was openly publicizing shouldn’t have been a surprise.  I expect Sgt. Hernandez’s lawsuit to be completely dismissed again on remand to the trial court and, if appealed again, its dismissal being upheld by the Ninth Circuit. For those of you are aren’t yet confused enough, I have an extensive article I wrote on this issue for the California District Attorneys Association (“Shooting the Messenger: First Amendment Freedom of Speech and the Public Employee;” available on our website for Professional Subscribers), as well as a quick summary of the principle cases on this issue, both of which I can send you upon request.