The Ninth Circuit Court of Appeals, in Hernandez v. City of Phoenix,[1] found that although it seemed like a police officer’s social media posts expressing hostility toward and denigrating a major religious faith and its adherents could impede the performance of his job duties and interfere with the police department’s ability to effectively carry out its mission, the posts qualified as speech on matters of public concern. Lacking evidence of actual or potential disruptive impact caused by his posts at this stage of the proceedings, the Court of Appeals reversed the District Court’s dismissal of plaintiffs’ First Amendment retaliation claim and remanded for further development of the factual record.
The Circuit Court also agreed with the District Court’s rejection of the officer’s facial overbreadth challenge to the department’s social media policy except as to clauses prohibiting social media activity that would cause embarrassment to or discredit the Department or divulge any information gained while in the performance of official duties.
Background
In August 2013, the Phoenix Police Department adopted a new policy governing its employees’ use of social media, Operations Order 3.2.7. That order established a comprehensive set of regulations and guidelines that apply to the use of social media both on and off the job. The policy explicitly covered an employee’s “personal use” of social media and specifies two general admonitions for such use: (1) “Department personnel are cautioned their speech and related activity on social media sites may be considered a reflection upon their position, and, in some instances, this Department,” and (2) “Personal social media activity must not interfere with work duties or the operation of the Department.”
After the Department adopted the policy, Sergeant Juan Hernandez, while off-duty, posted various news articles and memes created by others to his personal Facebook profile. Any member of the general public could view this content. Hernandez’s Facebook profile did not explicitly state that he worked as a Phoenix police officer, but he posted other content, such as photos of himself in uniform, from which that fact could be determined.
Between September 2013 and January 2014, Hernandez made four posts that denigrated Muslims and Islam. More than five years later in June 2019, the Plain View Project[2] (“Project”) published posts from officers of the Phoenix Police Department. Many posts reflected bias against racial or religious minorities or contained content that would be offensive to members of such groups. The Project’s publication of these posts resulted in public criticism of the Department and negative media attention. The Project’s database included 11 posts from Hernandez, including the four at issue here. The Phoenix Police Department’s Professional Standards Bureau conducted an internal investigation to determine whether any of Hernandez’s posts violated the Department’s social media policy. Its investigation focused on the four posts.
The Bureau concluded that, taken together, the four posts denigrating Islam and Muslims violated section 3.27.9.B.(6) of the Department’s social media policy, which states: “Department personnel are free to express themselves as private citizens on social media sites to the degree that their speech does not impair working relationships of this Department, are detrimental to the mission and functions of the Department, that undermine respect or public confidence in the Department, cause embarrassment to the Department or City, discredit the Department or City, or undermine the goals and mission of the Department or City.”
The Bureau found that Hernandez’s Facebook posts “potentially reduced or contributed to the erosion of public trust, were inflammatory to certain groups, and/or created dissention in the community by promoting hate, violence, racism, bias, or beliefs inconsistent with the Phoenix Police Department’s Purpose Statement and Guiding Values.” The Bureau also found that Hernandez’s posts “do not align with the distinguishing features, essential functions and required knowledge as outlined in the City of Phoenix classification for a Police Sergeant.” Based on the Bureau’s findings, Hernandez faced discipline ranging from a suspension of 40 hours without pay up to termination.
Before the Department’s Disciplinary Review Board or the Chief of Police decided what disciplinary sanction to impose, Hernandez and the Arizona Conference of Police and Sheriffs sued defendants City of Phoenix, the Chief of Police, and the Commander of the Professional Standards Bureau. An amended complaint asserted three causes of action. One of these alleged a claim under 42 U.S.C. section 1983 on two distinct theories. Plaintiffs contended, first, that the Department violated the First Amendment by retaliating against Hernandez for exercising his right to freedom of speech, and second, that certain provisions of the Department’s social media policy were facially invalid under the First Amendment because they are vague and overbroad. Plaintiffs sought damages incurred during the Department’s investigation of Hernandez’s posts, such as attorney’s fees; an injunction barring the Department from imposing any form of discipline against Hernandez for his posts; and an order enjoining further enforcement of the provisions of the social media policy that plaintiffs contended were facially invalid.
The District Court granted the defendants’ motion to dismiss as to Hernandez’s First Amendment retaliation claim and plaintiffs’ facial overbreadth challenge. The District Court rejected Hernandez’s First Amendment retaliation claim on the ground that his speech did not address matters of public concern and was therefore not entitled to constitutional protection under the balancing test established in Pickering v. Board of Education of Township High School District 205, Will County, 391 U.S. 563 (1968). The District Court also rejected plaintiffs’ facial overbreadth challenge on the ground that the Department’s social media policy prohibited only those categories of speech that could reasonably be expected to disrupt the Department’s mission and operations—ends that the Supreme Court has held are constitutionally permissible. The District Court entered summary judgment for defendants on plaintiffs’ other claims. Plaintiffs appealed.
Discussion
The Ninth Circuit Court of Appeals first considered the First Amendment retaliation claim, which was based on the contention that the Department violated Hernandez’s right to freedom of speech by seeking to discipline him for his social media posts. The Court explained that the Circuit used the balancing test drawn from tests established in Pickering to analyze First Amendment retaliation claims brought by government employees.
Under the Pickering balancing test, a government employee bears the initial burden of showing that he spoke on a matter of public concern and that he did so in his capacity as a private citizen, rather than as an employee. Connick v. Myers, 461 U.S. 138 (1983); Eng v. Cooley, 552 F.3d 1062, 1070-1071 (9th Cir. 2009). If the employee succeeds in making that threshold showing, his speech is entitled to constitutional protection and “the possibility of a First Amendment claim arises.” Garcetti v. Ceballos, 547 U.S. 410, 418 (2006). The burden then shifts to the government employer to show that it had an adequate justification for punishing the employee for his speech. To sustain its burden, the employer must show that “its own legitimate interests in performing its mission” outweigh the employee’s right to speak freely. City of San Diego v. Roe, 543 U.S. 77, 82 (2004) (per curiam).
The Court observed that the goal of this framework is to strike “a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Pickering, 391 U.S. at 568. The Ninth Circuit noted that the Supreme Court has held that government employers have a strong interest in prohibiting speech by their employees that “detract[s] from the agency’s effective operation.”[3] However, government employees have an interest in speaking out “to bring to light actual or potential wrongdoing or breach of public trust” within their agencies,[4] since they are often uniquely situated to inform the public about “government corruption and abuse.”[5]
It was uncontested that Hernandez spoke in his capacity as a private citizen rather than as an employee of the Phoenix Police Department when he made the Facebook posts, so the Court began its Pickering balancing test analysis by considering whether Hernandez’s speech addressed “a matter of public concern.” Lacking a clear definition, the Court stated that the concept is useful largely to draw a contrast with speech that is not entitled to constitutional protection in this context—namely, speech on “matters only of personal interest,” such as speech addressing “a personal employment dispute” or “complaints over internal office affairs.” Connick, 461 U.S. at 147, 148 n.8, 149. The Court explained that most speech falling outside that purely private realm warrant at least some First Amendment protection and thus will qualify as speech on a matter of public concern for purposes of the Pickering balancing test. Tucker v. California Department of Education, 97 F.3d 1204, 1210 (9th Cir. 1996).
The Ninth Circuit observed that to determine whether an employee’s speech addressed a matter of public concern, courts consider the content of the statements, the form (time, place, and manner) of the statements, and the context in which the statements were made. Connick, 461 U.S. at 147-48. The content of Hernandez’s posts did not address an internal workplace grievance or complaints about internal office affairs, but instead addressed matters of social or political concern that would be of interest to others outside the Department.[6] For example, one post had an article headlined “Military Pensions Cut, Muslim Mortgages Paid By US!” The Court explained that the article addressed to some degree the subject of government spending priorities, long regarded as a matter of public concern. See Ulrich v. City and County of San Francisco, 308 F.3d 968, 978-79 (9th Cir. 2002). Other posts likewise addressed subjects qualifying as matters of public concern. Regarding form and context, the Court noted that Hernandez posted each of the items at issue on his own time, outside the workplace, using his personal Facebook profile. The intended audience of his posts was not limited to other Department employees, and the posts could be viewed by any member of the general public. The Court noted that exhibits attached to Hernandez’s complaint indicated that issues relating to immigration and cultural assimilation, which some posts addressed, were topics of media attention at the time. The Ninth Circuit concluded that the posts qualified as speech on matters of public concern. The Court acknowledged that each of Hernandez’s posts expressed hostility toward, and sought to denigrate or mock, a major religious faith and its adherents. However, the Supreme Court had made clear that “[t]he inappropriate or controversial character of a statement is irrelevant to the question whether it deals with a matter of public concern.” Rankin v. McPherson, 483 U.S. 378, 387 (1987).
The Court of Appeals stated that although it seemed likely that Hernandez’s posts could impede the performance of his job duties and interfere with the Department’s ability to effectively carry out its mission, no evidence of actual or potential disruptive impact caused by Hernandez’s posts was properly before the Court at this stage of the proceedings. The Court of Appeals therefore reversed the District Court’s dismissal of plaintiffs’ First Amendment retaliation claim and remanded for further development of the factual record.
In remanding the case, however, the Ninth Circuit was not suggesting that the Department would “face a particularly onerous burden” to justify disciplining Hernandez for his posts, given the comparatively low value of his speech. The Court explained that while government employee speech that exposes wrongdoing or corruption within the employee’s own agency lies at “the apex of the First Amendment”[7] in this context, Hernandez’s Facebook posts occupied a much lower rung on the First Amendment hierarchy, and touched on matters of public concern “in only a most limited sense.”[8] Moreover, a police department’s determination that an officer’s speech warrants discipline is afforded considerable deference, and police departments may permissibly consider the special status officers occupy in the community when deciding what limitations to place on officers’ off-duty speech.[9] The Court noted that 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 a police department’s ability to effectively carry out its mission. Locurto v. Giuliani, 447 F.3d 159, 182-83 (2d Cir. 2006).
Facial Challenge to Department’s Social Media Policy
The Court of Appeals next addressed plaintiffs’ facial overbreadth challenge to some of the Department’s social media policy provisions, particularly the provision prohibiting social media posts “that are detrimental to the mission and functions of the Department, that undermine respect or public confidence in the Department, could cause embarrassment to the Department or City, discredit the Department or City, or undermine the goals and mission of the Department or City.” Plaintiffs argued that this provision and provisions employing similar language should be facially invalidated in part because they were unconstitutionally overbroad and vague.
The Court explained that in analyzing facial overbreadth challenges in the public employment context, it applied a modified Pickering balancing analysis that closely tracks the test used for First Amendment retaliation claims.[10] The Court explained: “We first ask whether the challenged restriction applies to employees’ speech in their capacity as private citizens on matters of public concern. If it does, we then ask whether the government has an adequate justification for treating its employees differently from other members of the general public. Barone v. City of Springfield, 902 F.3d 1091, 1102 (9th Cir. 2018).” Defendants did not dispute the first step, and the Court addressed whether Department had an adequate justification for the restrictions.
In largely agreeing with the District Court’s rejection of plaintiffs’ facial overbreadth challenge, the Court of Appeals noted that most of the challenged restrictions directly promoted the same interests that the Supreme Court had already held to be valid bases for imposing restrictions on public employee speech—government employers have a strong interest in prohibiting speech by their employees that undermines the employer’s mission or hampers the effective functioning of the employer’s operations.[11] That interest justified the policy’s restrictions on social media posts that were “detrimental to the mission and functions of the Department” or which “undermine[d] the goals and mission of the Department or City.” The Ninth Circuit noted that police departments also have a strong interest in maintaining a relationship of trust and confidence with the communities they serve,[12] which justified the policy’s restriction on speech that would “undermine respect or public confidence in the Department.”
However, the Court concluded that the Department did not have a legitimate interest in prohibiting speech merely because the Department might find that speech embarrassing or discrediting. The Court stated that virtually all speech that lies at the core of First Amendment protection in this area—for example, speech exposing police misconduct or corruption—could be expected to embarrass or discredit the Department in some way. In the absence of a developed factual record at the motion-to-dismiss stage, the Court of Appeals could not conclude that plaintiffs’ facial overbreadth challenge to these clauses failed as a matter of law. Plaintiffs separately challenged section 3.27.9.B.(7) of the social media policy, which provided that “Department personnel may not divulge information gained while in the performance of their official duties.” The Court held that although the Department had a strong interest in prohibiting the disclosure of confidential information, this section swept much more broadly. Moonin v. Tice, 868 F.3d 853, 865, 867 (9th Cir. 2017). The Court explained that this section prohibited the disclosure of any information gained while on the job, including information that could expose wrongdoing or corruption. This provision therefore could silence speech that warrants the strongest First Amendment protection in this context. Because plaintiffs’ challenge was resolved on the pleadings, the Department had not yet had an opportunity to produce evidence attempting to establish that this provision was appropriately tailored. Thus, plaintiffs’ challenge to this section could not be rejected at the motion-to-dismiss stage either. Aside from these two caveats, the Ninth Circuit Court of Appeals affirmed the District Court’s dismissal of plaintiffs’ facial overbreadth challenge.
The Court affirmed the District Court’s rejection of plaintiffs’ facial vagueness challenge to the same provisions. The Court explained that the challenged provisions, like many employment policies, were framed in broad and general terms that nonetheless provided sufficient guidance to employees as to the types of social media posts that are prohibited. The Court accordingly affirmed the District Court’s entry of summary judgment for defendants on plaintiffs’ facial vagueness challenge.
HOW THIS AFFECTS YOUR AGENCY
The Ninth Circuit reversed the lower court’s dismissal of the retaliation claim. However, agencies may observe that the Court of Appeal stated that it seemed likely that Hernandez’s posts denigrating Islam and Muslims could impede the performance of his job duties and interfere with the Department’s ability to effectively carry out its mission, and that the Department might not have a “particularly onerous burden” justifying disciplining Hernandez for his posts. After deciding Hernandez’s posts constituted speech on matters of public concern, normally the next step of the Pickering balancing test would require the Court to assess whether the Department had shown an adequate justification for punishing Hernandez’s otherwise protected speech. However, the District Court had dismissed Hernandez’s First Amendment retaliation claim at the motion-to-dismiss stage . The factual record before the Court of Appeals was thus limited to the allegations in the amended complaint and documents incorporated by reference, and the Court concluded reversal on this claim was proper. Agencies may note that the Court also stated that a police department’s determination that an officer’s speech warrants discipline is afforded considerable deference, and police departments may permissibly consider the special status officers occupy in the community when deciding what limitations to place on officers’ off-duty speech. This is particularly true of a person in a supervisorial role.
Agencies may note that the Ninth Circuit largely agreed with the District Court’s rejection of the plaintiffs’ facial overbreadth challenge. The Ninth Circuit stated that the Department had a legitimate interest in prohibiting embarrassing or discrediting speech to the extent such speech could reasonably be expected to disrupt the workplace, hinder the Department’s mission, or undermine the public’s confidence in and respect for the Department. While the Department’s social media policy prohibited such speech, the part that stated “Employees are prohibited from using social media in a manner that would cause embarrassment to or discredit the Department in any way” was deemed overbroad as it encompassed, for example, speech exposing police misconduct or corruption.
As always, if you want to discuss any of this in greater detail, do not hesitate to contact James Touchstone at jrt@jones-mayer.com or by telephone at (714) 446-1400.
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[1] 2022 U.S. App. LEXIS 21693 (9th Cir. Aug. 5, 2022).
[2] The Plain View Project maintains a database of Facebook posts from law enforcement officers across the country.
[3] Waters v. Churchill, 511 U.S. 661, 675 (1994) (plurality opinion).
[4] Connick, 461 U.S. at 148.
[5] Dahlia v. Rodriguez, 735 F.3d 1060, 1066-67 (9th Cir. 2013) (en banc).
[6] The Court noted that even if only “a relatively small segment of the general public” might have been interested in the subject of Hernandez’s posts, that would suffice. Roe v. City and County of San Francisco, 109 F.3d 578, 585 (9th Cir. 1997).
[7] Moser v. Las Vegas Metropolitan Police Department, 984 F.3d 900, 906 (9th Cir. 2021).
[8] Connick, 461 U.S. at 154.
[9] See Rankin, 483 U.S. at 390: “The burden of caution employees bear with respect to the words they speak will vary with the extent of authority and public accountability the employee’s role entails.”
[10] See United States v. Treasury Employees, 513 U.S. 454, 466-68 (1995).
[11] Rankin, 483 U.S. at 388, 390; Connick, 461 U.S. at 151-52.
[12] See Roe, 543 U.S. at 81.