A police officer working for a Pennsylvania university was fired after several of his social media posts were published. The university investigated and found that posts that were racist, homophobic, and discriminatory, and that the officer’s social media identified himself as university police officer.
Particularly troubling were the officer’s disparaging posts and posts pertaining to police officer excessive force. In one post about police shootings, the officer wrote, “If you don’t listen to a police officer’s orders, what happens to you is your fault.” In another post that referred to people of color, the officer wrote, “You rob us, car jack us, and shoot at us. But when a white police officer shoots a black gang member or beats up a black drug dealer running from the law and posing a threat to society, you call him a racist.”
The university fired the officer, citing the disruption caused by his social media posts, that the posts eroded the officer’s credibility and trusted place in the community, and that the university lost confidence in him.
The officer challenged his termination. In the arbitration, the officer argued that he was not aware of a university policy prohibiting him from stating his opinion. The arbitrator sustained the grievance and ordered that the officer be reinstated with backpay. The arbitrator stressed that the university did not have a specific social media policy, so the officer lacked notice that some off-duty posts could result in discipline.
A Pennsylvania court overturned the arbitrator’s decision, holding that the award undermined the public policy in Pennsylvania that prohibits discrimination. The court also noted that case law interpreting the First Amendment makes clear that a public employee’s expressive rights are not absolute. While this case does not apply to California peace officers, it does illustrate the risks involved in social media posts.
In assessing whether a California public employee’s speech is protected by the First Amendment, federal courts within the Ninth Circuit must determine, among other things, whether: 1) the employee spoke on a matter of public concern; 2) the employee spoke as a private citizen or public employee; and 3) the public employer had an adequate justification for treating the employee differently from other members of the general public.
Speech involves a matter of public concern when it can fairly be considered to relate to any matter of political, social, or other concern to the community. The fundamental question is whether the speech addresses “public” as opposed to “personal” interests. Speech animated by a “grudge” or “private interest” and only marginally related to issues of public concern may not protected.
But an employee’s speech is not automatically protected simply because it relates to a matter of public concern. Rather, courts will conduct a balancing test assessing the extent to which an employer’s action in response to the speech is necessary for the efficient and effective operation of the agency. The Ninth Circuit has recognized that the government’s interest in avoiding disruption is magnified when the employee serves in a public contact role and when close working relationships are essential to fulfilling public responsibilities.
Pennsylvania State System of Higher Education v. PASSHE Officers Association, (May 1, 2024), not reported.
Key Takeaway — While the First Amendment analysis is fact-specific, peace officers should be aware that statements of a discriminatory nature made on social media may not be protected by the First Amendment and may subject the officer to disciplinary action.