By Zachery A. Lopes
About the author: Zachery A. Lopes is a senior associate with the Rains Lucia Stern St. Phalle & Silver, PC (“RLS”) Collective Bargaining and Litigation Practice Groups. He also represents clients in legal defense matters and officer-involved critical incidents.
On January 12, 2021, the Ninth Circuit Court of Appeals issued a published decision which reaffirms the rules governing the scope of the right of public employees to engage in free speech. Because the speech of public employees has increasingly attracted attention from the public (and therefore from employers), all peace officers should know the basics of this important and dynamic area of the law.
The Court’s decision, Moser v. Las Vegas Metropolitan Police Department, et al. (9th Cir. 2021) No. 19-16511, is particularly instructive and relevant to today’s world, as it concerns public employee free speech rights in the context of social media. In addition to summarizing the Moser decision, including the law relied upon by that court, we have also included some practical guidance on how peace officers should approach their public speech activity in the social media age.
The Moser Decision and the State of the Law. In 2015, the Las Vegas Metropolitan Police arrested a suspect who had shot a police officer. Moser was a member of the Department’s SWAT team, but was not involved in the incident. In a post to his personal Facebook account regarding news of the suspect’s capture, Moser commented: “It’s a shame [the suspect] didn’t have a few holes in him…”
During the ensuing internal affairs investigation, which had been prompted by an anonymous tip, Moser claimed the intent of his post was to express his frustration that the fellow officer who had been harmed “didn’t have a chance to defend himself.” Not convinced, the Department found that Moser’s comment demonstrated that he had become “a little callous to killing,” and that his conduct violated the Department’s social media policy. The Department punished Moser by reassigning him from his SWAT position to patrol, resulting in a loss of specialty pay.
Moser sued in federal court, alleging that the Department’s punitive action violated his First Amendment right to freedom of speech. The Department moved to dismiss the lawsuit, asserting that Moser’s comment eroded public trust in the Department and exposed it to legal liability, thereby giving it sufficient justification to punish his conduct. The district court agreed with the Department.
In its reversal of the district court’s decision, the Ninth Circuit outlined in detail the existing state of the law. To prevail on a free speech claim, the employee must establish: (1) the speech at issue was on “a matter of public concern”; (2) it was undertaken “as a private citizen rather than a public employee”; and (3) the speech “was a substantial or motivating factor in the adverse employment action.” If the employee demonstrates the existence of all three factors, the burden shifts to the employer to demonstrate either adequate justification for taking its action against the employee, or that it would have disciplined the employee even without the speech activity at issue. (Pickering v. Bd. Of Education (1968) 391 U.S. 563.) This analytical framework attempts to strike the appropriate balance between “the free speech rights of government employees” and “the government’s interest in avoiding disruption and maintaining workforce discipline.” (Id.)
Speech constitutes a “matter of public concern” “if it relates to any matter of political, social or other concern to the community,” or is “a subject of general interest and of value and concern to the public.” (City of San Diego v. Roe (2004) 543 U.S. 77, 83-84.) The “content, form, and context of a given statement” must be analyzed in the context of the whole record, including “the employee’s motivation and the chosen audience.” (Connick v. Myers (1983) 461 U.S. 138, 147-148; Johnson v. Multnomah City (9th Cir. 1995) 48 F.3d 420, 425.) Speech is made as a private citizen where the employee “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.” (Eng v. Cooley (9th Cir. 2009) 552 F.3d 1062, 1071.)
When weighing the competing interests at stake, courts apply a “sliding scale in which the [employer’s] burden in justifying a particular [employment action] varies depending upon the nature of the employee’s expression.” (Connick, supra, 461 U.S. at 150.) Courts will “look to how the speech at issue affects the government’s interest in providing services efficiently.” (Kinney v. Weaver (5th Cir. 2004) 367 F.3d 337, 362.) Notably, courts have recognized that police departments specifically have heightened interests in “discipline esprit de corps,” “uniformity,” and a “special need [] to avoid disruption to provide public safety.” (Byrd v. Gain (9th Cir. 1977) 558 F.2d 553, 554.)
In the Moser case, the Department did not challenge the fact that Moser’s statements were made as a private citizen on a matter of public concern, nor that its decision to transfer him out of SWAT was motivated by his speech activity. Rather, the Department argued that, because Moser’s speech “advocated unlawful use of deadly force,” his free speech interest in making that statement was low, while its interest in “efficiency and employee discipline” was high, and Moser’s speech threatened those interests by disrupting the operation of the Department.
Significantly, the Court found that the Department did not adequately demonstrate that Moser’s speech would have caused disruption within the Department or interfere with its ability to provide law enforcement services. Key to the Court’s reasoning was the fact that the Facebook post was not widely reported or condemned by the public, and nobody would have reasonably known that Moser was a police officer based on the content of his Facebook profile. These facts “lessen[ed] the potential impact on the agency’s reputation or mission.” While the Court reversed the district court’s dismissal of the case, it nevertheless sent the case back to the lower court for further exploration of the facts, and to give the Department another opportunity to produce evidence demonstrating “a reasonable prediction of disruption” to its enterprise, as mere speculation that an employee’s speech will cause disruption is insufficient. (See Nichols v. Dancer (9th Cir. 2011) 657 F.3d 929, 933-934.) Thus, although Moser prevailed in the Ninth Circuit, the ultimate outcome of his free speech claim is far from certain.
Engaging in Public Speech Activity Without Inviting Discipline. Now, more than ever, with increasing public scrutiny of peace officer speech activity, it is imperative to remember that nothing is truly private on social media – anything you post can be found. In fact, this firm is aware of many recent efforts by employers to “canvass” its employees’ social media activity – including on supposed “private” pages – looking for inappropriate speech.
While peace officers certainly maintain their Constitutional rights, the law makes clear that having peace officer powers comes with some sacrifices. One such sacrifice is heightened scrutiny and regulation of what peace officers publicly say, if such statements disrupt your agency’s ability to fulfill its public function.
This is not to say you cannot, or should not, engage in public speech activity. Far from it. But doing so requires some appreciation of the wider implications, and unintended consequences, of expressing your personal views on public platforms. If nothing else, think of how your statements will reflect on not only your employer, but on your coworkers. Remember that the public tends to see “cops” as an opaque whole, with the actions of one reflecting the character and integrity of all of the profession’s individuals.
For some practical guidance, we’d like to share the following common-sense “Ten Rules for Police Officer Social Media Posts.” These rules were crafted by Will Aitchison, a founding member of the Public Safety Labor Group (Portland, Oregon) and Labor Relations Information Service, in order to help employees avoid disciplinary action within the existing state of the law. We encourage all association leaders to pass along these rules to their members.
- Your First Amendment rights are very limited.
- Just because something is an Internet meme doesn’t mean you can post it.
- Nothing you post online is truly private. Check your privacy settings. But remember nothing you post is truly private.
- Before posting, ask yourself: if my employer receives a complaint about what I’m going to post, how will it react? If the answer is “not so well” or “they’ll start a disciplinary investigation,” is the post really worth it?
- Be positive with your posts, not negative and critical.
- If you have the slightest doubt about whether to post something, sleep on it. Ask a fellow officer, one you think of as responsible and serious, what he/she thinks.
- Think: Who are your “friends”?
- Ask yourself – can someone figure out that I’m a police officer from my social media profile or my prior posts?
- Your credibility can be called into question by what you’ve posted online.
- Think about your job, your family, and your safety.
Stay safe, and be smart!
Zachery A. Lopes is a senior associate with the Rains Lucia Stern St. Phalle & Silver, PC Collective Bargaining and Litigation Practice Groups. Zach also represents clients in legal defense matters and officer-involved critical incidents.
