United States: Refining The First Amendment Status Of Social Media Activity By Government Employees

The Supreme Court's 1968 decision in Pickering v. Board of Education allows governmental employers, including law enforcement agencies, to fire or discipline employees for disrupting operations with excessive complaining, but it prohibits governmental employers from firing or disciplining an employee for speaking out on matters of public concern as a private citizen if the employee's interest in speaking outweighs the agency's interest in maintaining efficiency. While the line between disruptively complaining and responsibly speaking out may be clear enough in theory, however, it is often difficult to draw in practice, particularly when the employees in question work in law enforcement. The most recent case to dive into this thicket is Graziosi v. City of Greenville, from the Northern District of Mississippi.

We previously discussed the First Amendment rights of law enforcement personnel in connection with the Eleventh Circuit case Gresham v. City of Atlanta. In Gresham, the plaintiff was passed over for a promotion after making a Facebook post critical of what she saw as obstruction of justice by a fellow officer.  The court held that the plaintiff had spoken on a matter of public concern, but that her interest in speaking did not outweigh the government's interest in promoting efficiency.  The key point was that the plaintiff had configured her Facebook post to be viewable only by her friends, which indicated that her post was not "calculated to bring an issue of public concern to the attention of persons with authority to make corrections . . . the context was more nearly one of Plaintiff's venting her frustration with her superiors."

The decision in Graziosi deals with the same elusive line between mere complaining on the one hand, and alerting the public to important information about the operations of government agencies on the other.  A member of the Greenville Police Department, Sergeant Graziosi, made a series of public Facebook posts criticizing the chief of police for failing to send a representative to the funeral of a fellow officer.  Graziosi posted these complaints first as her own Facebook status update, and then posted them on the campaign page of the local mayor.  The chief of police fired Graziosi for making the posts, which the chief of police contended violated several internal police department policies that forbid public criticism and excessive complaining by officers.  Graziosi filed a lawsuit alleging that her termination violated the First Amendment.

One pivotal issue in the case was whether the criticisms Graziosi posted on Facebook qualified as speaking out on a matter of public concern as a private citizen.  Graziosi argued that a decision about whether or not to send police officers to a funeral is inherently a matter of public concern because it involves the spending of public funds.  However, the court noted that if anything that involved spending funds was a matter of public concern, then "almost anything" would satisfy that requirement of the Pickering test.  Instead, the court looked to the primary motivation for speaking.  The court determined that "Graziosi's comments to the Mayor, although on a sensitive subject, were more related to her own frustration of Chief Cannon's decision not to send officers to the funeral and were not made to expose unlawful conduct within the Greenville Police Department.  Her posts were not intended to help the public actually evaluate the performance of the GPD."  The court found that Graziosi was speaking out about a matter that was primarily internal to the police department, and hence, she was speaking not as a citizen, but as an employee, and not on a matter of public concern, but on a matter of personal concern.  Therefore, her comments did not pass the threshold requirement of the Pickering test.

This decision is similar to the decision in Gresham, but differs in important ways.  In both cases, the complaints that a law enforcement officer posted on Facebook were denied First Amendment protection because those complaints were more fairly described as venting frustrations than as attempts to get important information to the public.  In both cases, the court found that although the topic of the speech was of at least some concern to the public, the speaker was primarily motivated by a desire to vent frustration.  In Gresham, the court made this determination by considering the audience that the plaintiff spoke to; in Graziosi, the court made this determination by considering what the plaintiff spoke about.  However, the courts applied the determination that the speaker was motivated primarily by a desire to vent at different steps in the analysis.  In Gresham, the court found that the plaintiff's interest in complaining was less weighty than the interest of the police department in preserving efficiency.  However, in Graziosi, the court found that the plaintiff's primary purpose of venting personal grievances defeated her claim before the weighing stage was even reached.  Because the plaintiff's intent was primarily to vent frustration, she was not speaking as a private citizen or speaking on a matter of public concern, and hence would not have been eligible for First Amendment protection even if her interest had outweighed the interest of the police department.

Viewed in the light of recent high profile situations involving governmental employees speaking out about matters of public concern contrary to applicable governmental policies, such as the leaks by Edward Snowden and Chelsea (formerly Bradley) Manning, clarifying the rules in this area is more important than ever.  And the fact that so much of the relevant communication now takes place in the diverse and always-changing world of social media only increases the complexity of the issues.  As a result, we can expect that the courts will continue to develop the law in this area for many years, but the outline of how the First Amendment applies to governmental employees using social media is at least beginning to take shape.

Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Morrison & Foerster LLP. All rights reserved

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