In Reno v. ACLU, 521 U.S. 844 (1997), the Supreme Court established that postings on the Internet are speech for purposes of First Amendment protection. Here are several cases involving public employees and First Amendment protections which police officers need to know about.
The “Public Concern” Test
Connick v. Myers, 461 U.S. 138 (1983) involved an assistant district attorney who prepared and circulated a questionnaire within the office after a management decision to transfer her. The questionnaire solicited coworkers’ views on office morale, work assignments, the need for a grievance committee, confidence in management and whether employees felt pressured to work on political campaigns. The Supreme Court concluded that only the last question possibly touched on a matter of public concern. The remaining questions related to internal workplace grievances. Therefore, the questionnaire was not protected by the First Amendment
In City Of San Diego v. Roe. 125 S. Ct. 521 (2004) the Supreme Court fleshed out the “public concern” test. Roe, a police officer, was fired after he made and sold online a video showing him engaging in sexually explicit acts. The Ninth Circuit reversed the firing, holding it violated Roe’s First Amendment rights. Reversing the Ninth Circuit, the Supreme Court elaborated that public concern involves “something of legitimate news interest; that is, a subject of general interest and of value and concern to the public at the time of the publication.”
The “Private Citizen” Test
Garcetti v. Ceballos, 126 S. Ct. 1951 (2006) involved a supervising deputy district attorney who became concerned about inaccuracies in an affidavit in support of a search warrant brought to his attention by the defense attorney. Ceballos expressed his concerns to his supervisors and prepared a memorandum recommending dismissal of the criminal case. The District Attorney’s Office proceeded with the case.
There was a hearing before a judge about the search warrant during which Ceballos testified for the defense. The trial court judge rejected the motion to dismiss the warrant. Ceballos claimed his reassignment to another office as a trial attorney and denial of a promotion was retaliation for First Amendment protected speech. Reversing the Ninth Circuit’s ruling (again) in favor of Ceballos, the Supreme Court held that Ceballos made the statements pursuant to his official duties and not as a private citizen and, thus, the speech was not protected.
In Spieglu v. Hull, 481 F3d 961 (7th Cir. 2007), a corrections officer alleged retaliation in violation of the First Amendment when she was reassigned following her reporting of suspicious conduct and a possible breach of prison security by other officers. Applying Garcetti, the Seventh Circuit held the officer was not speaking as a citizen “but as a correctional officer charged with the duty to ensure the prison’s safety. Accordingly, the First Amendment does not insulate her statements from employer discipline …”
Vose v. Klimment, 506 F.3d 565 (7th Cir. 2007), involved a police sergeant complaining about adverse action taken against him by his department when he voiced concerns to upper management about wrongdoing on the part of investigators assigned to a multiagency major case squad. The court held the speech was not protected because it was not made as a private citizen but fell within his official duties.
NOTE: The Supreme Court stated in Garcetti and the Seventh Circuit repeated that even honorable speech may not be protected by the First Amendment. It may, however, have whistleblower protection [which depends on the language of the applicable local, state or federal statutes].
The Balancing Test
When conducting the balancing test prong, the courts generally recognize the heightened interests of a law enforcement employer in maintaining discipline and harmony in the workplace and fostering a positive relationship with other agencies and the public. Tindle v. Caudell, 56 F3d 966, 971 (8th Cir. 1995) (“Because police departments function as paramilitary organizations charged with maintaining public safety and order, they are given more latitude in their decisions regarding discipline and personnel regulations than an ordinary government employer.”)
In Nixon v. Houston, 511 F.3d 494 (5th Cir. 2007) the Fifth Circuit got to the 3rd prong of balancing competing interests. Nixon worked for the Houston PD and wrote a column for the Houston Chronicle on his own time without the knowledge, approval or authorization of his department. This met the “private citizen” test. He wrote about matters touching on his police duties, the department’s operations, etc. This met the “public concern” test. An investigation into Nixon’s writing discovered he often made derogatory comments about minorities, women, and the homeless. The court upheld Nixon’s termination finding the HPD’s interest in maintaining public trust, confidence and cooperation outweighed Nixon’s individual free speech interest.
While you may have other protections for your social media and internet postings — whistleblower statutes, union negotiated contracts, anti-discrimination statutes, department policies, etc. — if you intend to rely on the First Amendment, make sure your postings meet the three-prong test set out by the Supreme Court.
