Court Rejects Police Officers' First Amendment Lawsuit Relating to their Personal Social Media Activities
A federal district court recently rejected police officers' claims that their First Amendment rights were violated by a city after the officers were disciplined or terminated for their personal social media activities. Fenico v. City of Philadelphia.
The officers' Facebook posts were brought to light by the "Plain View Project," a database of public social media posts and comments of current and former police officers across the country. According to the district court's opinion, the database includes over 5,000 posts and comments by police officers which Plain View deemed likely to "undermine public trust and confidence in police." Over 3,000 of the posts were attributed to Philadelphia police officers according to the Plain View Project.
After the posts and comments of city police officers were brought to light, the city faced protests by a number of groups and organizations objecting to the social media activities of some of the city police officers. The city subsequently conducted an internal investigation which ultimately led to disciplinary action against many of the officers, including termination in some cases. A number of the officers filed a lawsuit against the city, claiming the city retaliated against them in violation of their First Amendment free speech rights.
The district court considered the following three factors to determine whether a government employee's free speech rights are violated: (1) whether the employee was speaking as a private citizen; (2) whether the employee spoke on a matter of public concern; and (3) whether the employee's and public's interest in the speech outweighs the government interest in avoiding disruption to government operations that could be caused by the speech. If the government employee can demonstrate they meet each of the three factors, they will prevail in a First Amendment lawsuit.
As to the first factor, the parties acknowledged that the officers spoke as "private citizens."
With respect to the second factor, after analyzing the plaintiff-officers' social media posts, the court determined that they spoke on matters of "public concern." The court noted that even the most inappropriate, inflammatory, or controversial comments can touch on matters of public concern.
The third factor (called the Pickering Balance) required the court to balance the city's interest in avoiding significant disruption to police operations against the employee's and public's interest in the employee's speech. After analyzing the hundreds of social media posts that were part of the lawsuit (many of which are reprinted in the opinion itself), the court determined that the city established that the city's interest in protecting police operations outweighed any employee or public interest in that speech. The court noted that many of the social media posts and comments involved advocating for violence against members of protected classes, included sexist and racist imagery, etc. The city demonstrated that public confidence in these officers and the department in general was negatively impacted by the officers' social media activities, and that the activities impacted law enforcement operations for many reasons, including that the district attorney had issued letters to many of the officers that it would have to disclose their social media activities to defense attorneys in cases where the officer was involved.
Because the plaintiff-officers did not meet the third factor required to demonstrate a First Amendment claim against the city, the court rejected the plaintiff-officers' First Amendment claims and ruled in favor of the city on all claims.
