In Hernandez v. City of Phoenix, published August 5, 2022, the 9th Circuit Court of Appeals affirmed in part and reversed in part dismissal of a police officer's suit against the defendant city under 42 U.S.C. section 1983. The city's police department adopted a social media policy for employees that prohibited employees from engaging in speech that would be detrimental to the mission and functions of the department, undermine respect or public confidence in the department, or impair working relationships in the department. While off-duty, the plaintiff officer posted to his personal Facebook profile of news articles and memes, accessible to the public, with content that was negative to Muslims and Islam. Over five years later, a project that maintains a database of Facebook posts from law enforcement officers across the country, published the plaintiff's posts. This generated public criticism of the department and negative media attention. The department investigated the posts. The officer asserted that he posted the items to drive discussion about issues in the news at the time. The investigation concluded that the officer had violated the department's social media policy. Before the department decided what discipline to impose, the officer and others filed the lawsuit. The plaintiffs contend that the department violated the 1st Amendment by retaliating against the officer for exercising his right to freedom of speech. and that portions of the social media policy are facially invalid under the 1st Amendment as vague and overbroad. They sought damages and injunctive relief. The district court granted an FRCP 12(b)(6) motion to dismiss the retaliation and facial overbreadth challenge. It then granted summary judgment on the facial vagueness claim.
The 9th Circuit reversed the dismissal of the retaliation claim. The Pickering test for whether a public employee spoke on a matter of public concern as a private citizen, rather than as an employee, applies. The district court determined that the officer had not spoken on a matter of public concern. That is an issue of law subject to de novo review. The court analyzes the content, form, and context in which the statements are made. The content here did not address internal work matters; they addressed matters of social and political concern of interest to others outside the department. Regarding form and context, the plaintiff posted the items on his own time, outside the workplace, using his personal Facebook profile. The intended audience was not limited to fellow employees, and the posts were open to the public. While the posts expressed hostility toward, and sought to denigrate or mock, a major faith and its adherents, the inappropriate or controversial character of a statement is irrelevant to whether it deals with a matter of public concern. The court remanded the claim to the district court for further development of the record. The court emphasized that the department may not face an onerous burden to justify disciplining the officer for the posts, given the comparatively low value of his speech and the deference given to a police department's determination that an officer's speech warrants deference. The department 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.
Regarding the facial challenge to the social media policy, the appellate court largely agreed with the district court. Most of the challenged restrictions directly promote valid bases for imposing restrictions on public employee speech: prohibiting speech that undermines the employer's mission or hampers effective functioning of operations. The challenge to the provisions prohibiting speech that would cause embarrassment to or discredit the department, however, cannot be rejected at the pleading stage. The department does not have a legitimate interest in prohibiting speech merely on those grounds. The same applies to the challenge to the portion of the policy that department personnel may not divulge information gained in the performance of their official duties.
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