On June 8, 2023, the Third Circuit Court of Appeals decided Fenico v. City of Philadelphia[i], which is instructive regarding the First Amendment rights of police officers.
In Fenico, twelve City of Philadelphia police officers were disciplined regarding various posts on Facebook. Some of the officers were terminated and some were given lengthy suspensions. The officers were of various rank and assignments and most had between ten (10) and twenty-five (25) years of service. Additional relevant facts, taken directly from the case are as follows:
In 2019, the Plain View Project (“Plain View”), a nonprofit news organization, aggregated and published an online database of over 5,000 Facebook posts and comments made by current and former police officers around the country. Plain View stated that the posts reflected officers’ views on “race, religion, ethnicity and the acceptability of violent policing,” and had the capacity to “undermine public trust and confidence in our police.” Plain View database. Plain View attributed around 3,000 of those posts to Philadelphia police officers.
At issue in this case are the 250 posts Plain View attributed to the twelve Officer Appellants, a subset of which purportedly informed PPD’s investigations and disciplinary actions. The posts were described by the District Court as having “spanned a multitude of topics such as protestors and their treatment, the use of violence against child molesters, Islam and its followers, refugees, police brutality, and much more.” J.A. at 5-6. However, the posts also “ridiculed and belittled members from the LGBTQ community, reportedly using individuals who are transgender as punch lines in their jokes, or worse, threated violence against them . . . African Americans, Muslims, Mexicans, and foreign refugees were not spared as Plaintiffs played racist bingo, mocking as many ethnic or religious groups as possible.” Id. at 30.
On June 1, 2019, internet media, news, and entertainment company Buzzfeed News wrote a longform article about Plain View which republished a selection of the 5,000 posts with commentary about their impact on the community. The article highlighted several of Appellant Fenico’s posts. According to the Amended Complaint, PPD Commanders held a meeting on June 6, 2019 to discuss the article. During this meeting, the Officers allege that First Deputy Commissioner Myron Patterson acknowledged that the focus of the Buzzfeed article was a critique of “right wing posts,” and implied that his concerns were similarly aligned. J.A. at 43-44.
The Buzzfeed article led PPD to initiate an investigation into the underlying posts. Based on the results of that investigation, 72 PPD officers were placed on restricted duty or suspended. According to the Amended Complaint, at least five of the twelve Officers involved in this action were formally charged with violating one or both of the following provisions of the Department’s Disciplinary Code:
“Conduct Unbecoming” — “Any incident, conduct, or course of conduct which indicates that an employee has little or no regard for his/her responsibility as a member of the Police Department.” Article I, Section l-§ 021-10.
“Neglect of Duty” — “Failure to comply with any Police Commissioner’s orders, directives, memorandums, or regulations; or any oral or written orders of superiors.” Article V, Section 5-§ 011-10.Id. at 45.
Some Officers’ disciplinary charges also cited PPD’s “Social Media and Networking” Policy, Directive 6.10, which prohibits the use of ethnic slurs, personal insults, profanity, material that is harassing, defamatory, fraudulent, or content that would otherwise not be acceptable in a City workplace, and puts officers on notice that “personal use of social media has the potential to impact the department as a whole, as well as individual members serving in their official capacity.” Id. at 90-95.
In addition to the Disciplinary Code, PPD maintains a code of ethics and set of directives to which all employees must swear an oath. This includes that “[officers] will never act officiously or permit personal feelings, prejudices, animosities, or friendships to influence [their] decisions” and that they “will enforce the law courteously and appropriately, . . . never employing unnecessary force or violence.” S.App. at 21. PPD Officers also vow to “recognize the badge of [their] office as a symbol of public faith, and [] accept it as a public trust to be held so long as [they are] true to the ethics of the police service.” Id.[ii]
The twelve officers filed suit against the City for retaliation under the First Amendment. The district court dismissed the suit and concluded that the hateful speech was not protected by the First Amendment therefore, the officers failed to state a claim upon which relief could be granted.
The officers appealed the dismissal to the Third Circuit Court of Appeals. The officers argued that their speech was protected by the First Amendment and as such, the case should not have been dismissed.
The court of appeals examined the evidence on record and acknowledged that social media posts were “offensive, racist, and violent.”[iii] The court of appeals also acknowledged that posts such as this can undermine the public trust, since the police are supposed to serve the community, regardless of race, ethnicity, religion, sex, gender expression, political beliefs, and national origin.
The court of appeals also noted that there were insufficient facts in the record to for the district court to determine the First Amendment did not protect the officers’ speech regarding each of the twelve officers. Specifically, the court stated
[T]he First Amendment requires a stronger factual tether than the District Court held when it dismissed the Officers’ retaliation action. There are material gaps in the undeveloped record concerning (1) when certain posts were authored and by whom; and (2) which posts were even the subject of PPD’s disciplinary actions. These gaps preclude an adequately particularized analysis of the public concern raised. The current record also includes only unadorned speculation about the potential disruption the Officers’ posts pose. Such speculation is facially insufficient, for example, to overcome causational questions about certain posts that had been public for years, purportedly without issue. Accordingly, we conclude that dismissal of the Officers’ action was improper without a more developed record, and we will allow their retaliation claims to proceed to discovery.[iv]
Thus, the court reversed the dismissal of the suit and sent the case back to the district court so that plaintiff officers and the City could proceed with discovery to gather additional facts and more fully develop the record in the case. For example, the Facebook posts at issue were from 2012-2017 and there were no disruptions caused by the posts documented by the City. The court concluded that, at this point, the record did not contain sufficient facts to support the dismissal of the case.
That said, there is a lot that law enforcement executives and supervisors can learn from this case. This will be discussed below.
1. Do police officers enjoy the protections of the First Amendment regarding social media posts?
Police do have rights under the First Amendment, however those rights are less than that of the general public. The court stated
As an initial matter, “[s]peech by government employees receives less protection than speech by members of the public.” Amalgamated Transit Union Loc. 85 v. Port Auth. of Allegheny Cnty., 39 F.4th 95, 103 (3d Cir. 2022). However, “public employees do not surrender all of their First Amendment rights merely because of their employment status.” Munroe v. Cent. Bucks Sch. Dist., 805 F.3d 454, 465 (3d Cir. 2015), as amended (Oct. 25, 2019).[v]
2. What must a government employee show to properly plead a First Amendment retaliation claim?
The court stated that, in order to plead retaliation under the First Amendment, a government employee must allege that
(1) The activity in question is protected by the First Amendment, and
(2) The protected activity was a substantial factor in the alleged retaliatory action.” Hill v. Borough of Kutztown, 455 F.3d 225, 241 (3d Cir. 2006).[vi]
3. How does a government employee show that their speech is protected under the First Amendment to satisfy the first part of the test above?
The court of appeals noted that the Supreme Court, in Garcetti v. Ceballos,[vii] addressed this question. The Court stated that a government employee must establish the following:
(1) The government employee must establish that they spoke as private citizen, not as a government employee speaking under their position; and
(2) The government employee must establish that the statement involved a matter of public concern, rather than only an internal or private work or officer issue.
After the employee establishes that they spoke (1) as a private citizen (2) on a matter of public concern, they have established the possibility of a First Amendment retaliation claim. But of course, there is more. As the court of appeals stated,
The court must then determine, under the test elaborated in Pickering v. Board of Education of Township High School District 205, Will County, Illinois, if the employee’s interest in speaking outweighs the government’s interest in avoiding disruption to its operations. 391 U.S. 563, 568, 88 S. Ct. 1731, 20 L. Ed. 2d 811 (1968); Munroe, 805 F.3d at 466.[viii]
Additionally, this balancing test involves a sliding scale. For example, the higher the importance or seriousness of the matter of public concern, the more the disruptions caused by the speech must be tolerated by the government employer. The court of appeals stated
[A]s the more substantially an employee’s speech involves matters of public concern, the higher the state’s burden will then be to justify taking action, and vice versa. . . [A]s this Court has recognized, the public concern inquiry “involves a sliding scale in which the amount of disruption a public employer has to tolerate is directly proportional to the importance of the disputed speech to the public.[ix]
4. What constitutes a matter of public concern?
The court said that, while this is a “question of law” for a court to determine, the determination is made based on the “content, form, and context of a given statement, as revealed by the whole record.”[x]
The court of appeals also stated
Speech relates to a matter of public concern when “it can be fairly considered as relating to any matter of political, social or other concern to the community,” as opposed to a purely private intraoffice grievance.[xi]
The court noted that an employee’s position as a police officer does not affect the analysis of whether something is “a matter of public concern.” Rather, the employee’s position as a police officer is considered when weighing the speech against the employer’s interest in preventing a disruption.
5. What are additional considerations related to speech that is a matter of public concern?
First, it is also important to note again, as stated in point 3 above, not all matters of public concern are given the same level of importance. The more important the matter, the higher the burden of the government to show its need to avoid a potential disruption due to the employee’s speech.
Second, the court of appeals stated that, when a court considers whether speech is “a matter of public concern,” the offensiveness of the speech should not be considered. The offensiveness of the speech should be considered when the court conducts the balancing test of the importance of the matter of the matter versus the government’s interest in avoid a disruption. In the case at hand, the court of appeals noted that the district court considered the offensiveness of the speech when making its determination of whether the speech was related to a matter of public concern. Specifically, the court of appeals stated
[T]he “inappropriate or controversial nature” of the speech is not relevant to whether it touches on matters of public concern — it is only a factor in evaluating its disruptiveness during Pickering balancing. Munroe, 805 F.3d at 470 . . . Hernandez v. City of Phoenix, 43 F.4th 966, 978-79 (9th Cir. 2022) (“Speech that expresses hostility toward racial or religious minorities may be of particularly low First Amendment value at the next step of the Pickering balancing test . . . but its distasteful character alone does not strip it of all First Amendment protection.”).
As such, even the most deeply troubling speech may be of concern to the public and warrant First Amendment protection—depending on the facts of the case. While it carries the potential to be inflammatory, speech touching on race relations is “inherently of public concern.” Connick, 461 U.S. at 148 n.8; Locurto, 447 F.3d at 183[xii]
The court of appeals provided some examples of very offensive speech to which the Supreme Court upheld First Amendment protection, although this speech was not uttered by police or other government employees. The court of appeals stated
To provide a concrete example, the Supreme Court in Snyder v. Phelps upheld a broad range of highly offensive protest signage criticizing specific religions (“Pope in Hell,” “Priests Rape Boys”), celebrating violence against a particular group (“Thank God for IEDs,” “Thank God for Dead Soldiers”), and condemning the LGBTQ community (“God Hates Fags,” “Fags Doom Nations”). 562 U.S. 443, 454, 131 S. Ct. 1207, 179 L. Ed. 2d 172 (2011). Although far from “refined social or political commentary,” the Court held this speech “plainly relate[d] to broad issues of interest to society at large.” Id.[xiii]
6. Is violent speech given First Amendment protection?
The court of appeals stated
[N]ot all violent speech automatically falls outside of the First Amendment’s protective shroud. See Rankin, 483 U.S. at 386 (holding that statements wishing harm on the President are of public concern);[xiv]
The court also noted that that there are narrow categories of speech that are not given First Amendment protection, such as “true threats,” incitement to “imminent[] lawless action,” and “fighting words“); ); In re Kendall, 712 F.3d 814, 825 n.8, 58 V.I. 718 (3d Cir. 2013)[xv]
Thus, speech with violent content, that does not convey “true threats, incite imminent lawless action or fighting words” is likely protected by the First Amendment. The court cited Bauer v. Sampson[xvi] as an example and stated
Although [plaintiff’s] writings have some violent content, they are hyperbole of the sort found in non-mainstream political invective and in context . . . are patently not true threats.[xvii]
7. What are the considerations for the court when considering the likelihood of the disruption caused by the speech?
As a review, since we’ve covered a lot of legal principles and rules, to state a claim for retaliation under the First Amendment, a plaintiff must show (1) that they engaged in speech protected by the First Amendment, and (2) this speech was a substantial factor in the government’s retaliatory action.
In order for a government employee to show that their speech was protected under the First Amendment, they must show (1) they spoke as a private citizen (not in their capacity as government employee), and (2) they spoke on a matter of public concern (not an internal, work related grievance).
After the employee has satisfied the above two elements, the court must balance (1) the importance of the matter of public concern that the employee spoke about versus (2) the government’s interest in preventing a disruption. This is where we are with question 7 above. The court of appeals stated
To be protected by the First Amendment, Pickering requires that the employee’s interest in speaking outweigh the government’s interest in promoting workplace efficiency and avoiding disruption. 391 U.S. at 568. The government “has a freer hand in regulating the speech of its employees than it has in regulating the speech of the public at large, but that hand is not uncontrolled.” Watters v. City of Philadelphia, 55 F.3d 886, 896 (3d Cir. 1995) (internal quotations omitted) (citing Waters v. Churchill, 511 U.S. 661, 671, 114 S. Ct. 1878, 128 L. Ed. 2d 686 (1994)).
Notably, an employer need not show that the speech in question caused actual disruption to its operations in order to satisfy Pickering — a reasonable likelihood of such disruption will suffice. Connick, 461 U.S. at 152 (holding that an employer need not “allow events to unfold to the extent that the disruption of the office and the destruction of working relationships is manifest before taking action”). In fact, the Supreme Court has “given substantial weight to government employers’ reasonable predictions of disruption, . . . even . . . when the speech involved is on a matter of public concern.” Waters, 511 U.S. at 673.
However, an employer must still establish likely disruption through record support, and courts have long required more than “unadorned speculation as to the impact of speech.” Hall v. Ford, 856 F.2d 255, 261, 272 U.S. App. D.C. 301 (D.C. Cir. 1988) (citing Rankin, 483 U.S. at 388-89);[xviii]
The court of appeals discussed the likelihood of disruption as it related to the case at hand involving the officers at the Philadelphia police department. The court of appeals noted that the court failed to adequately evaluate the likelihood of disruption that could be caused by the officers’ Facebook posts.
The City argued the importance of the need to maintain the public trust, promote a diverse workforce, and avoiding potential disruptions, pointing to increased public scrutiny of police in recent years. The officers argued that the Facebook posts at issue were old (2012-2017) and there was no evidence that they caused a public or internal disruption. They argued that the City found that 250 Facebook posts were likely to cause a disruption, however, the court of appeals noted that district court did not evaluate every individual post on its own merits because the record was not sufficiently developed.
The court of appeals further stated
[T]he Supreme Court has deferred heavily to employers’ reasonable interpretations of employee speech and predictions of disruption—especially where, as here, the employer has performed an internal investigation into the matter. Waters, 511 U.S. at 676 (looking to employer’s reasonable understanding of speech in question rather than a jury’s fact-determination, even where employer’s understanding is inaccurate). And our sister Circuits have recognized that this is especially true for police departments, which face unique internal and external dynamics. Cochran v. City of Los Angeles, 222 F.3d 1195, 1201 (9th Cir. 2000) (affording considerable deference to police department as employer, as “[d]iscipline and esprit de corps are vital to its functioning”); Locurto, 447 F.3d at 179, 183 (rejecting heckler’s veto concerns and finding disruption likely where police officers expressed bias against those they were hired to protect—satisfying Pickering even where “plaintiffs’ expressive interests [in the speech were] not insubstantial“).[xix]
Ultimately, the court may, after the record is developed, hold that the likelihood of disruption outweighs the officers’ interest in the speech. However, the record must be developed through discovery.
Thus, the court of appeals reversed the District Courts dismissal of the officers First Amendment retaliation claims and remanded the case for further proceedings.
8. What are the takeaways from this case?
First, if supervisors or law enforcement executives seek to discipline officers for social media posts, the rules and legal principles discussed in points 1-7 above should be considered and the internal investigation should develop facts related to the legal principles and legal tests discussed. For this type of employee misconduct investigation, it is advisable to seek the advice of a city or county attorney.
Second, remember that this case did not condone or authorize the posts of the officers. Rather, the court held that the case needed further evidence developed so that the legal tests above could be properly analyzed. Each post must be evaluated on its own merits. Further, based on the content of the Facebook posts, it is likely not all of the 250 Facebook posts determined to be a likely disruption by the City will be deemed exempt from First Amendment protection.
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] Id. at 38 (emphasis added)
[i] No. 22-1326 (3rd Cir. Decided June 8, 2023)
[ii] Id. at 4-8
[iii] Id. at 3
[iv] Id. at 3-4
[v] Id. at 23 (emphasis added)
[vi] Id. 23-24 (emphasis added)
[vii] 547 U.S. 410 (2006)
[viii] Fenico at 24 (emphasis added)
[ix] Id. at 24-25 (emphasis added)
[x] Id. at 28
[xi] Id. (emphasis added)
[xii] Id. at 31 (emphasis added)
[xiii] Id. at 32
[xiv] Id. at 32 (emphasis added)
[xv] Id. (emphasis added)
[xvi] 261 F.3d 775 (9th Cir. 2001)(Amended Oct. 15, 2001)
[xvii] Fenico at 32 (quoting Bauer, 261 F.3d at 783-784)
[xviii] Id. at 34-35 (emphasis added)
[xix] Id. at 38 (emphasis added)
