WORK WITH US
Ninth Circuit Provides Guidance For Responding To An Officer’s Hateful, Off-Duty Speech
In 2013 and 2014, Sergeant Juan Hernandez, who worked for the City of Phoenix Police Department, posted news articles and memes on his Facebook page that denigrated Muslims and Islam. Hernandez posted the content while off duty and he did not state he was a City employee, although other content on his Facebook page showed him in uniform. The posts generated no controversy or disruption in the Department for several years.
In 2019, the Plain View Project, an organization that collects and maintains a database of Facebook posts from law enforcement departments nationwide, disclosed the posts, along with others from members of the Department that reflected bias. Once the posts were publicized, they generated significant criticism of the Department and media attention. In response, the Department took steps to discipline Hernandez for four of his Facebook posts, which it viewed as violating the Department’s social media policy.
Hernandez sued in federal court. He claimed that the Department was retaliating against him for his First Amendment-protected speech. Hernandez also challenged the Department’s social media policy as overbroad and vague, and thus unconstitutional. The federal trial court granted the City’s motion to dismiss and concluded that: 1) the City did not retaliate against Hernandez in violation of the First Amendment because his speech was not on a matter of “public concern,” and 2) the City’s social media policy was not overbroad or vague. Hernandez appealed to the Ninth Circuit.
The Ninth Circuit affirmed that the district court properly rejected Hernandez’s over-breadth challenge to the social media policy. The Ninth Circuit found that the City’s social media policy could lawfully prohibit social media posts that: 1) are “detrimental to the mission and functions of the Department,” 2) “undermine the goals and mission of the Department or City,” or 3) “undermine respect or public confidence in the Department.” The Ninth Circuit noted that most of the challenged restrictions on employee speech directly promoted the same interests that the U.S. Supreme Court had already found to be valid. Namely, 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.
The Ninth Circuit also found that the following provisions of the Department’s social media policy were potentially invalid as overbroad: 1) “Employees are prohibited from using social media in a manner that would cause embarrassment to or discredit the Department in any way”; and 2) “Department personnel may not divulge information gained while in the performance of their official duties.” The Court did clarify, however, that the Department could prohibit the disclosure of confidential information. The Court was careful to point out that its decision to overturn the trial court’s decision as to these two provisions of the social media policy meant that the Department could still try to present evidence to support its need for these provisions.
On the question of whether Hernandez’s posts were protected by the First Amendment, however, the Ninth Circuit decided that the trial court was wrong. To prevail on a First Amendment retaliation claim, public employees must show that: 1) they spoke on a matter of “public concern,” 2) they spoke outside the scope of their “official duties,” and 3) their speech interests outweigh the countervailing administrative interests of their agency employer.
The Ninth Circuit acknowledged that the social media posts “expressed hostility toward, and sought to denigrate or mock, a major religious faith and its adherents.” In the Ninth Circuit’s view, the U.S. Supreme Court had made clear that the inappropriate or controversial character of a statement is irrelevant to the question of whether the statement deals with a matter of public concern. The Ninth Circuit emphasized that even if the “public concern” test is met, speech that has a biased or bigoted character would “be of particularly low First Amendment value at the next step of the Pickering balancing test.” The fact that Hernandez’s posts had received extensive media coverage supported its finding that the posts were a matter of public concern.
The Ninth Circuit remanded the case in part back to the trial court because the district court had erroneously determined that Hernandez’s speech could not constitute a matter of public concern.
The Court emphasized that the remand did not mean “that the Department will face a particularly onerous burden to justify disciplining Hernandez for his posts, given the comparatively low value of his speech.” This is because the courts give considerable deference to a police department’s determination that an officer’s off-duty speech warrants discipline and departments may consider the special status officers occupy in the community. An officer’s speech that suggests bias against racial or religious minorities can hinder that officer’s ability to work effectively and undermine the department’s ability to effectively carry out its mission.
Hernandez v. City of Phoenix, 43 F.4th 966 (9th Cir. 2022).
If a public employer learns of an employee’s off-duty social media posts that appear bigoted or hateful, the employer must consider whether the First Amendment protects the speech. The employers must be able to identify the specific disruption that the speech caused to the agency, such as: an impairment to co-worker relations; an impact on the officer’s ability to carry out job duties; or the undermining of the agency’s ability to operate effectively.