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Ninth Circuit Provides New Guidance For Defining Protected Speech Under the First Amendment And The Permissible Scope Of Social Media Policies
Social media sites have become the new “public square” where individuals share opinions and information about all types of political and societal events. Public sector employees, as much as anyone else, use social media to post viewpoints and to participate in public debate. Problems arise, however, when a public employee posts harsh, derogatory, defamatory, or biased statements that may interfere with the public agency’s ability to effectively carry out its mission, or impact the public employee’s ability to perform job duties. This reality can result in a clash between the public employee’s First Amendment rights, and the rights of their agency to carry out its responsibilities on behalf of the public.
Many California government agencies have social media policies that set forth rules regarding the conduct of their employees on social media. Earlier this month, on August 5, 2022, in Hernandez v. City of Phoenix, the U.S Court of Appeals for the Ninth Circuit (which covers California) issued an opinion that provides significant guidance on two important issues. First, what type of speech is entitled to First Amendment protection. Second, how can government agencies structure social media policies while complying with the First Amendment’s free speech guarantee. Below is a summary of the key points.
Facts of the Case
In 2013 and 2014, Sergeant Juan Hernandez, a Police Sergeant in the City of Phoenix Police Department, posted news articles and memes on his Facebook page that denigrated Muslims and Islam. Hernandez posted the content 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 until they were identified by the Plain View Project and disclosed publicly in 2019. The Plain View Project is an organization that collects and maintains a database of Facebook posts from certain law enforcement departments nationwide. The Plain View Project disclosed the posts along with others from members of the Phoenix Police Department that reflected bias, and this disclosure generated significant public criticism and media attention aimed at the Department.
The Department took steps to discipline Hernandez for four of his Facebook posts, which it viewed as violating the Department’s social media policy. But in the midst of this process Hernandez sued in federal court asserting 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 Decision of the Ninth Circuit
The Ninth Circuit reversed in part, holding first that the trial court erred in determining that Hernandez’s speech was not on a matter of “public concern.” By way of background, to prevail on a First Amendment retaliation claim, a public employee 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 under the circumstances outweigh the countervailing administrative interests of their agency employer (this final element is called “Pickering balancing” after the case of that name). The Ninth Circuit then remanded the case back to the trial court because the trial court had erroneously determined that Hernandez’s speech could not constitute a matter of public concern.
The Ninth Circuit’s discussion of “public concern” addressed the important issue of whether harsh, biased speech on social media – particularly by law enforcement members – meets the “public concern” test. The Court explained: although it was true that the Facebook posts “expressed hostility toward, and sought to denigrate or mock, a major religious faith and its adherents,” nevertheless the U.S. Supreme Court has made clear (in that Court’s words) that “[t]he inappropriate or controversial character of a statement is irrelevant to the question whether it deals with a matter of public concern.” The Ninth Circuit emphasized that nevertheless, speech that has a biased or bigoted character, even if it met the public concern test, would “be of particularly low First Amendment value at the next step of the Pickering balancing test” although “its distasteful character alone does not strip it of all First Amendment protection.” The Court also noted that 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 then provided a prediction of how the next steps, the Court’s conducting a balancing process, would turn out, and provided language particularly helpful to law enforcement agencies seeking to discipline members for bigoted or biased speech:
“In remanding the case, we do not mean to suggest that the Department will face a particularly onerous burden to justify disciplining Hernandez for his posts, given the comparatively low value of his speech. Government employee speech that exposes wrongdoing or corruption within the employee’s own agency lies at ‘the apex of the First Amendment’ in this context. Needless to say, Hernandez’s Facebook posts occupy a much lower rung on the First Amendment hierarchy, and indeed they touched on matters of public concern ‘in only a most limited sense.’ On the other side of the scale, 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. 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 the department’s ability to effectively carry out its mission.”
(Quoting authority, citations omitted.)
The Ninth Circuit agreed with the trial court’s decision on most aspects of the Police Department’s social media policy. In particular, it found that the trial court appropriately rejected the argument that the City’s social media policy was not overbroad and/or vague by prohibiting social media posts that:
- Are “detrimental to the mission and functions of the Department,”
- “[U]ndermine the goals and mission of the Department or City,” or
- “[U]ndermine respect or public confidence in the Department.”
The Ninth Circuit, however, found that the following provisions were potentially invalid as overbroad:
- “Employees are prohibited from using social media in a manner that would cause embarrassment to or discredit the Department in any way.”
- “Department personnel may not divulge information gained while in the performance of their official duties.” (The Court clarified that provisions on disclosure of confidential information can be appropriate.)
The Court was careful to point out that, technically, their decision to overturn the trial court’s decision meant that the Police Department could try to present evidence to support these last two provisions, but the Court did not explain what evidence the Department could present for them to be found valid.
Impact on Government Employee Social Media Policies
The Court’s discussion of “public concern” means that public employers confronted with employees whose social media posts appear bigoted or hateful must anticipate that a Court could conclude the speech is protected by the First Amendment. Accordingly, employers that desire to take action against an employee for posting such content must be prepared to identify specific disruption to the agency as a result of the speech, such as the speech impaired co-worker relations, impacted the speaker’s ability to carry out job duties, or undermined the agency’s ability to operate effectively, to name a few. The Court in Hernandez, however, did provide some encouraging language for law enforcement by signaling that hateful or bigoted speech does not possess a high degree of First Amendment protection, if any, and that public safety departments may be able to show disruption fairly easily.
The Court’s discussion of social media policies requires agencies that have policies containing language of the type the Court identified as problematic to reconsider that language. Maintaining social media policies that prohibit any type of speech that may embarrass or discredit the agency is likely overbroad and may lead to liability. In addition, precluding an employee from disclosing any information at all gained from their employment will be problematic.
The language the Court approved will, by contrast, help agencies in crafting such policies. Nevertheless, an important consideration is that although the Ninth Circuit in the Hernandez case, as described above, rejected a facial challenge to the policy language at issue (i.e., a challenge that the language standing by itself is invalid), an employee could still make what is known as an “as applied” challenge if an agency applies the language to particular conduct by the employee in a way that violates the First Amendment. An example might be an agency’s punishing an employee who complains about genuine police misconduct at the Department and bases the discipline on the fact that the employee’s complaint undermines “respect” for the agency. Accordingly, agencies must still take care in applying language such as that approved by the Ninth Circuit in Hernandez, and will be well-served by creating social media policy prohibitions that are as specific and straightforward to apply as possible.
Agencies should turn to trusted legal counsel for updates on social media policies as needed, and now is an appropriate time.