First Amendment Protections Mean Officer’s Claim Proceeds

Darrell VanDeusen
Darrell VanDeusen

That pesky old First Amendment “freedom of speech thing” has been in the news a lot lately.  The issue of whether a public employee’s speech is protected has Supreme Court underpinnings. In Pickering v. Bd. of Ed. of Twp. High Sch. Dist., 391 U.S. 563 (1968) the Court created a balancing test that looks to whether an employee (1) spoke on a matter of public concern; (2) spoke as a private citizen rather than a public employee; and (3) suffered an adverse employment action where the speech was a substantial or motivating factor in the discipline.  If the employee proves these things, court must balance that against the employer’s interest in having a disruption free workplace.

Of course, some speech is simply not protected (recall Justice Holmes’s comment in Schenk v. U.S. about falsely “shouting fire in a theatre” as one example).  But just because speech is inflammatory it does not lose Constitutional protection.  In Brandenburg v. Ohio, 395 U.S. 444 (1969), the Court held the government cannot punish inflammatory speech unless that speech is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”

That brings us to our case of the day.  In Moser v. LVMPD, No. 19-16511 (9th Cir. Jan. 12, 2021), the Ninth Circuit reversed the entry of summary judgment in favor of the Las Vegas Metropolitan Police Department for demoting an officer who claimed he was retaliated against for exercising his First Amendment rights in a Facebook post.  In what can only be described as masterful understatement, Judge Lee began the opinion as follows:

Social media has allowed Americans to connect with friends in far-flung places  and to share their opinions on topics both mundane and momentous.  But social media can also tempt people to impulsively make inflammatory comments that they later regret.  And even worse for them, employers often react by firing or punishing them for their ill-advised remarks.

Charles Moser was a SWAT sniper who wrote on Facebook that it was a “shame” a suspect who had shot another police officer did not have any “holes” in him.  Someone notified the department.  Moser was dismissed from the SWAT team and made a patrol officer for violating the department’s social media policy.  Moser sued, claiming his comment suggested only that the police officer should have fired defensive shots.  The district court construed Moser’s statement as advocating unlawful violence and dismissed the case.

On appeal, the Ninth Circuit panel reversed, 2-1, with Judge Berzon dissenting.  The Pickering test balances free speech rights against the interest in avoiding workplace disruption and maintaining discipline.  Here, Moser satisfied his side of the Pickering balance:  no one disputed that he spoke as a public citizen about a matter of public concern, or that he was removed from the SWAT team because of his comment.  

The department, however, did not produce evidence that supported its belief the comment would disrupt its workplace or prompt other officers to engage in violence.  What Moser intended by his statement was unclear, said the court.  Specifically, Moser said that his Facebook comment, while “inappropriate,” was actually meant to express “his regret that the ambushed officer did not get off any defensive shots.”   That interpretation was different from the department’s, and so a question of fact exists that requires the case to proceed to trial.

Judge Berzon was less than convinced.  In her dissent she stressed that “the majority does not explain how . . . evidence of Moser’s private, subjective meaning alone can make his public statement objectively ambiguous.  Nor does it properly address whether [the department’s] interpretation of Moser’s comment, ambiguous or not, was reasonable, the touchstone of the Pickering balancing  test.”  The department’s interpretation of the comment was “by far more reasonable” than Moser’s explanation for his particular use of the English language.

The take away?  We are now at a time where words and their actual meaning are frequently secondary to the subsequent rationalization of “what I really meant that to mean…” even if that supposed meaning differs markedly from the language on the page.  There may be lots of reasons this has occurred, but one of them – I believe – is how easily one can give in to impulsive commentary on social media.

And remember, the First Amendment does not apply in the private sector.  A private employer who learns of an employee’s comments on social media or elsewhere (inflammatory or otherwise) with which it disagrees can indeed take disciplinary action against the employee. Important caveat here:  unless the topic is protected by labor, employment or other laws).  And disciplinary action is indeed sometimes the appropriate action to take.  Or, even better, we could all just stop using social media.  But that’s just my (likely inflammatory) opinion.

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