Social Media and First Amendment Freedom of Speech Rights
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.
