In 2015, someone shot a police officer and a suspect was later arrested.  While of-duty, a SWAT sniper commented on a friend’s Facebook post which linked to an article about the shooting.  He wrote, “It’s a shame he didn’t have a few holes in him.”  An anonymous tip came in about the post, there was an internal investigation, and the officer was transferred out of SWAT and put back on patrol.  The department felt that his comment showed he had become “a little callous to killing.”

He filed a lawsuit alleging the department had retaliated against him for speech protected under the First Amendment.  On January 12, 2021, the Ninth Circuit Court of Appeals issued a ruling that will serve as the governing authority in California on public employees’ free speech rights.  See Moser v. Las Vegas Metropolitan Police Department (9th Cir., Jan. 12, 2021, No. 19-16511) 2021 WL 98249 (Moser).

The court in Moser began by explaining the applicable test the U.S. Supreme Court has developed to address public employee First Amendment claims against their employers.  Under that test, the plaintiff must show: (a) he spoke on a matter of public concern; (b) he spoke as a private citizen rather than a public employee; and (c) his speech was a substantial factor in his discipline.  If the employee makes this showing, the burden shifts to the employer to demonstrate that its legitimate administrative interests outweighed the employee’s First Amendment rights.  If the employer cannot meet its burden, then the First Amendment will protect the plaintiff’s speech.

Applying this test, the court in Moser found the employee met his burden because:

  1. The SWAT sniper’s comment addressed an issue of public concern, which means it related to any matter that is political, social or another concern to the community or is the subject of legitimate news interest;
  2. The SWAT sniper’s comments were made as a private citizen and not a public employee because he was at home, off-duty and used his personal Facebook account; and
  3. He was transferred out of SWAT because of his Facebook post.

The court then turned to the balancing test between the employer’s administrative interests and the employee’s First Amendment Rights.  Importantly, the court noted that even though the government generally cannot consider the content of the speech under the First Amendment, there is a narrow exception for speech by government employees.  When applying the balancing test, courts may consider the content of the speech to determine how much weight to give the employee’s First Amendment interests.

In Moser, the court held that it could not balance the employer’s administrative interests against the employee’s First Amendment rights because of two factual disputes.  First, it found there was a factual dispute over what the Facebook comment objectively meant.  The police department contended it advocated unlawful violence by law enforcement.  Under the department’s interpretation, the Facebook comment would not have needed the highest level of First Amendment protection.  However, the SWAT sniper contended he did not advocate unlawful violence, but instead expressed frustration at the perils police officers face.  Under his interpretation, his Facebook post would have needed the highest level of protection because it would relate to an important public policy issue.  A significant point to take away from this part of the ruling is that before disciplining employees based upon their speech, public entities must analyze potential ways the employee could claim his or her speech sought to address problems at work.  If it could be interpreted that way, the speech will be entitled to greater protection under the First Amendment.

After addressing the strength of the employee’s First Amendment rights, the court in Moser then considered the other side of the balancing test, which is the employer’s administrative interests.  The court found there was a factual dispute over whether the Facebook post would have caused disruption to the police department or exposed it to future legal liability.  It noted there was no media coverage, no evidence that anyone knew about the post other than the person who made the anonymous tip, and little chance the public would have seen it because the SWAT sniper deleted his Facebook comment.  A significant point to take away from this ruling is that before disciplining employees based on their speech, public entities should consider whether they can produce evidence that the speech has or will disrupt their workplace.

The police department has the option to file a petition for rehearing en banc (i.e., by a larger panel of the Ninth Circuit) to ask it to reach a difference decision, and can ask the U.S. Supreme Court to choose to hear the case and possibly reach a different result.  However, the ruling in Moser is now the law in California and courts will rely on it when issuing rulings related to public employees’ First Amendment rights.  With the rise in social media usage, public entities will increasingly be challenged with how to handle controversial online posts by their employees.  They should consider seeking legal advice when deciding whether to impose discipline.