Arizona Public Employers: Social Media Regulation and Free Speech – Reasonable or Overreach?
Sometimes the lines between our personal social media and our workplace becomes blurred. Statements we make on social media can sometimes impact the workplace. Many employers have social media policies to regulate not only speech on the job, but also off-duty speech. Public employers have to avoid infringing on their employees’ First Amendment rights. But what about public officials with high visibility? What about our law enforcement personnel who are under ever increasing public scrutiny? Should they be able to express controversial views on social media? What limits are reasonable? Recently, the Ninth Circuit in Hernandez v. City of Phoenix, 43 F.4th 966 (9th Cir. 2022) considered whether an Arizona police department could discipline a police officer for off-duty social media posts, in which he expressed negative bias towards Muslims. Public employers have many complex issues to navigate, and this case serves as a guidepost in the patchwork of First Amendment caselaw.
Factual Overview
Juan Hernandez, a former Sergeant of the Phoenix Police Department, shared four social media posts on his personal Facebook page that “denigrated” (as the Court described) Muslims and Islam. He shared these posts while off-duty from September 2013 to January 2014. Any member of the public could view Hernandez’s posts. While Hernandez did not identify himself as a Phoenix police officer on his Facebook page, he posted some photos of himself in uniform.
In June 2019, five years after Hernandez’s posts, the Plain View Project published a collection of posts from various officers at the Phoenix Police Department.[1] Many of the posts contained offensive content.[2] This prompted negative public and media attention. Hernandez’s posts were among those published.
The Department’s social media policy prohibited employees from engaging in speech that was “detrimental to the mission and functions of the Department,” “undermine[d] respect or public confidence in the Department,” or “impair[ed] working relationships.” In 2019, the Department fired Hernandez for violating the Department’s social media policy.
Hernandez challenged his termination by bringing a lawsuit alleging 1) the Department violated his First Amendment rights by disciplining him for his social media posts, and 2) the Department’s social media policy was invalid because it was overbroad and vague. The District Court rejected Hernandez’s First Amendment retaliation claim by finding his speech did not address matters of public concern and was not entitled to constitutional protection. It also rejected Hernandez’s claim that certain provisions of the Department’s social media policy were facially invalid. Hernandez appealed to the Ninth Circuit.
Were the Social Media Posts Personal Speech on Matters of Public Concern Warranting First Amendment Protection?
Yes – the Ninth Circuit determined Hernandez’s social media posts were on matters of public concern and warranted some First Amendment protection. Therefore, the District Court should not have rejected Hernandez’s First Amendment retaliation claim. Under the Pickering[3] balancing test, if the public employee shows he or she spoke on a matter of public concern as a private citizen, then the burden shifts to the employer to show it had adequate justification for punishing the employee for his or her speech.
To determine if the speech was on a matter of public concern, Courts analyze the time, place, and manner of the statements, and the context in which the statements were made. The Supreme Court has defined the concept of public concern in general terms and contrasted it with subjects that are not of public concern. Specifically:
Public Concern
Any matter of:
· Political concern
· Social concern
· Any other concern to the community
· Subjects that receive media coverage
Not of Public Concern
Speech on matters only of personal interest, such as speech addressing:
· Personal employment disputes
· Complaints over internal office affairs
The Court found Hernandez’s posts were on a matter of public concern because they addressed political and social issues that could be of interest to those outside the Department. In addition to commenting on Muslims and Islam, the posts addressed U.S. government spending, and events that received media attention. Although Hernandez’s posts were found to be denigrating to Muslims and Islam, the Court noted “[t]he inappropriate or controversial character of a statement is irrelevant to the question of whether it deals with a matter of public concern.”
Did the Department Have Adequate Justification for Discipline?
Unclear – the Ninth Circuit did not specifically rule on this issue. Since Hernandez established his posts were made in his capacity as a private citizen on a matter of public concern, the burden shifts the Department to demonstrate it had adequate justification for the discipline. That is, the employer must show “its own legitimate interests in performing its mission” outweigh the employee’s right to speak freely.[4] The Ninth Circuit remanded the case to perform this balancing test because it lacked the factual record to rule on the issue. However, the Court opined Hernandez’s speech was of “low value”:
“In remanding the case, we do not mean to suggest that the Department will face a particularly onerous burden to justify disciplining Hernandez for his posts, given the comparatively low value of his speech. Needless to say, Hernandez’s Facebook posts occupy a much lower rung on the First Amendment hierarchy, and indeed they touched on matters of public concern in only a most limited sense.”
The Court also presented some competing interests between the government and employees to balance when analyzing whether the government had adequate justification for disciplining the employee. While there are no bright line rules when weighing the competing interests, the Court highlighted several guiding principles worth noting:
Government Employer
Strong interest in prohibiting speech that:
· Impairs working relationships among co-workers
· Impedes performance of the speaker’s job duties
· Interferes with the effective function of the employer’s operations
· Undermines the employer’s mission
Government Employee
Interest in speech that:
· Exposes actual or potential wrongdoing
· Exposes breach of public trust within their agencies
The Court also provided additional guidance for law enforcement agencies when analyzing whether discipline is warranted:
A police department’s determination that an officer’s speech warrants discipline is afforded considerable deference.
Police departments 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.
Were the Department’s Provisions Unconstitutionally Overbroad?
Yes – the Court determined that two provisions of the Department’s social media policy could potentially be overbroad. These two provisions prohibited social media activity that “(1) would cause embarrassment to or discredit the Department, or (2) divulge any information gained while in the performance of official duties.”
The Court explained the government cannot prohibit speech that “merely” causes embarrassment or discredit to the Department because that would include speech protected by the First Amendment (such as exposing police misconduct.) However, the Department could reasonably prohibit speech that causes embarrassment and discredit if it might “disrupt the workplace, hinder the Department’s mission, or undermine the public’s confidence in and respect for the Department.” Moreover, the Department cannot prohibit disclosure of any information learned on the job because, again, it would silence speech warranting First Amendment protection. Rather, the Department could reasonably prohibit disclosure of confidential information. As such, the Court remanded these issues for further development.
Key Takeaways
When determining whether discipline is warranted for a law enforcement officer’s private speech, employers must consider whether the speech impairs working relationships among co-workers, impedes performance of the speaker’s job duties, interferes with the effective function of the employer’s operations, or undermines the employer’s mission. If so, the employer will be expected to show evidence of how the speech harmed the agency.
The inappropriate or controversial character of an employee’s speech is irrelevant to determining whether it deals with a matter of public concern.
Police officers’ social media posts that suggest racial or religious bias could reasonably undermine their ability to effectively perform their duties and subject them discipline – even if they involve matters of public concern.
[1] The Plain View Project is a database of controversial public Facebook posts and comments made by current and former police officers across the United States.
[2] Hernandez’s first post was a meme depicting a series of mugshot-like photos of men with a caption stating, “The most common name for convicted gang rapist in England is… Muhammad.” It also had additional text stating, “Note to British media – these gangs are not comprised of ‘Asians’; they are Muslims.” The second post described an encounter between a British cab driver and a passenger. The passenger asked the cab driver to turn off the radio because in the time of the prophet, there was no music, especially Western music which is the music of the infidel. The cab driver turned off the radio, stopped the cab, and opened the door and said, “In the time of the prophet, there were no taxis, so piss-off and wait for a camel!” The post also had the text, “You just got to love the Brits.” The third post was a meme entitled, “Recent Contributions to Science by Islam.” It showed the photos of four men to whom quotes were attributed to mock Islamic scholars and scientists. The fourth post was an article published by the Minority Report Blog under the headline, “Military Pensions Cut, Muslim Mortgages Paid by US!” Beneath the headline the article stated, “The Obama Administration cut Military pensions but found 300 million to send to Muslim’s overseas to help pay for their mortgages.”
[3] Pickering and Mt. Healthy City Board of Education v. Doyle, 429 U.S. 274 (1977)
[4] City of San Diego v. Roe, 543 U.S. 77, 82 (2004)
