THE CALIFORNIA LEGAL UPDATE
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September 18, 2022
September 18, 2022
Deputy District Attorney (Retired)
THIS EDITION’S WORDS OF WISDOM:
“A police officer came to my house and asked me where I was between 5 and 6. He seemed irritated when I answered; ‘Kindergarten.’”
The Use of Social Media and a Public Employee’s Freedom of Speech
COURT CASE REFERENCE: Hernandez v. City of Phoenix (9th Cir. Aug. 5, 2022) 43 F.4th 966.
LEGAL UPDATES REFERENCE NO. CAC00080
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.