Increasingly, officers are voicing their workplace grievances and concerns online via social media, where it is readily accessible by members of the public. While some off-duty social media activity can be speech protected by the First Amendment, other statements are not protected and can be subject to legitimate disciplinary policies such as Conduct Unbecoming an Officer or Insubordination.
As courts address the issue on a case-by-case basis, public safety leaders are offered significant court guidance to aid them in making informed decisions when dealing with employees’ social media activity that they believe may warrant disciplinary action while avoiding the legal liability associated with unlawful First Amendment retaliation claims by officers.
Emerging Court Guidance—Graziosi v. City of Greenville Miss.
Recent decisions at the circuit court level interpreting the Supreme Court decision in Garcetti v. Ceballos [i] seem to indicate that public safety employees may face an uphill battle when challenging discipline due to social media statements critical of supervisors and agency leaders. When seeking First Amendment protection for voicing discontent with agency operations, public agency employees are required to demonstrate that (1) their statements were made in regards to a matter of public concern, (2) their statements were not made pursuant to their official duties, and (3) their freedom of speech interests are not out-weighed by the agency’s interests in effectively managing a para-military organization. This final requirement can prove particularly difficult for plaintiffs, as courts tend to recognize that public safety agencies are distinct from other government agencies in that the maintenance of command structure and public trust are of paramount importance.
In its 2015 decision in the case of Graziosi v. City of Greenville Miss. [ii], the Fifth Circuit affirmed a lower court decision granting summary judgment to the defendant agency in the case of a police sergeant terminated as a result of her Facebook© postings. The court found that the plaintiff’s Facebook posts voicing her discontent with her chief were notprotected by the First Amendment and, therefore, her termination did not constitute unlawful retaliation for constitutionally-protected speech. Not only did the Fifth Circuit find that the plaintiff’s comments were not of public concern—regarding the city’s decision to require that officers use their personal vehicles rather than patrol cars to attend the funeral of a fallen officer from another agency—but found that even if those comments were to be considered to be regarding matters of public concern, the derogatory manner in which she commented upon the character of her chief in voicing those concerns created a risk of organizational disruption that outweighed any First Amendment interest she would have.
In pertinent part, the court recounted the social media activity in question and the subsequent termination as follows:
On May 9, 2012, Graziosi, a sergeant with the GPD with over 25 years of service, was notified of her termination after publishing, or “posting,” statements critical of Chief Cannon to Facebook. Graziosi’s termination came days after she had returned from a suspension for violating multiple sections of the GPD’s Policy and Procedure Manual during her response to a domestic disturbance call.
During a meeting before Graziosi’s suspension, several officers expressed to Chief Cannon a desire to attend the funeral of a police officer who was killed in the line of duty in Pearl, Mississippi. Despite the city council’s decision to disallow the use of patrol cars for personal use under the “take-home” program due to budget concerns, Chief Cannon discussed sending one patrol car to the funeral. However, after learning that one patrol car would not accommodate all of the officers who wanted to attend the funeral, Chief Cannon decided that the officers would have to use their personal vehicles if they planned to attend.
On May 7, 2012, after learning that no member of the GPD attended the funeral, Graziosi used her home computer, while off duty, to post the following statement to her Facebook page:
I just found out that Greenville Police Department did not send a representative to the funeral of Pearl Police Officer Mike Walter, who was killed in the line of duty on May 1, 2012. This is totally unacceptable. I don’t want to hear about the price of gas-officers would have gladly paid for and driven their own vehicles had we known the city was in such dire straights [sic] as to not to be able to afford a trip to Pearll, Ms. [sic], which, by the way, is where our police academy is located. The last I heard was the chief was telling the assistant chief about getting a group of officers to go to the funeral. Dear Mayor, can we please get a leader that understands that a department sends officers of [sic] the funeral of an officer killed in the line of duty? Thank you. Susan Graziosi
Several of Graziosi’s Facebook “friends,” or followers, “liked,” or indicated approval of, her post and left comments. Graziosi posted responses to several comments. For instance, when one of her Facebook friends informed her that he had seen a motorcade of police officers heading towards Pearl, Graziosi responded, “you can bet none were from GPD. I’m mad. (can you tell).” In response to a comment lamenting the perceived decline of the GPD by a former officer, Graziosi posted:
[W]e had something then that we no longer have. . .LEADERS. I don’t know that trying for 28 is worth it. In fact, I am amazed everytime [sic] I walk into the door. The thing is the chief was discussing sending officers on Wednesday (after he suspended me but before the meeting was over). If he suddenly decided we “couldn’t afford the gas” (how absurd – I would be embarrassed as a chief to make that statement) he should have let us know so we could have gone ourselves. Also, you’ll be happy to know that I will no longer use restraint when voicing my opinion on things. Ha!
Later that night, Graziosi posted her initial statement to then-Mayor Chuck Jordan’s public Facebook page. Fifteen minutes later, Graziosi made an additional post in which she stated, “If you don’t want to lead, can you just get the hell out of the way.” Within a minute, she posted again stating, “seriously, if you don’t want to lead, just go” [iii]
The Fifth Circuit first rejected the plaintiff’s assertion that her statements were made regarding a matter of public concern. Instead, the court accepted the defendant agency’s argument that the topic of discussion was one that “involved a dispute over an intra-departmental decision”. [iv] The court conceded that the plaintiff’s posts may well have begun as commentary on matters of public concern but that they “quickly devolved into a rant attacking Chief Cannon’s leadership”. [v] The court found that “[d]espite the perhaps genuine desire to inform the community about the GPD’s failure to send a representative to the funeral of a police officer killed in the line of duty” that this intention cannot transform into a public matter what is essentially “a private employee-employer dispute”. [vi]
Furthermore, the court stated that even if the postings did constitute commentary on a matter of public concern, the defendant agency’s organizational interests still outweighed the free speech interests of the plaintiff. The court applied the balancing test outlined in the Supreme Court decision in Garcetti v. Ceballos—“[w]hether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public”—and found that it favored the defendant agency. In doing so, the court noted that a public safety officer is not the same as other public employees in this area and determined that, “[w]here, as here, a case involves weighing the interests of a police department, preserving loyalty and close working relationships within the department are important considerations.” [vii]
Policy Criticism versus Personal Attacks
In analyzing the Graziosi decision, it is important to point out the court’s assertion that (1) commentary upon matters of public concern can be transformed into a simple discussion of interpersonal conflict when personal attacks are levied against agency leaders, and (2) those very same personal attacks can result in an individual’s free speech rights as a citizen being outweighed by the public safety agency’s interests in effective management and organizational cohesion.
In short, the Graziosi decision is one of multiple recent decisions that point to the following piece of practical guidance for leaders in public safety: while professionally-articulated criticisms of agency policy in the public eye may well be protected from agency retaliation by the First Amendment, personal attacks on the motives and competence of agency leadership are not.
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Note: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.
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CITATIONS:
[i] Garcetti v. Ceballos, 547 U.S. 410 (2006)
[ii] Graziosi v. City of Greenville Miss., 775 F.3d 731 (5th Cir. 2015)
[iii] Id. at 734
[iv] Id. at 738
[v] Id. at 738
[vi] Id. at 739
[vii] Id. at 740
