Tim Cushing does an excellent job of saying what needed to be said about the Third Circuit’s decision in Fenico v. Philadelphia.
The First Amendment protects speech, even the horrible stuff. It can’t protect the speaker from being criticized for being abhorrent, despite what many abhorrent people believe. It can, however, in certain cases, protect the speaker from being punished for this speech.
It’s not blanket coverage. The person engaging in the speech generally has to be punished by a government entity for this protection to kick in. A private company can fire someone for their speech without worrying too much about the Constitution. But a state entity needs to be far more careful, even when it’s dealing with its own employees.
The added wrinkle is the First Amendment limitations placed on government employees. Most speech is protected, but speech made while acting as a government employee via their official duties is less protected than speech made off the clock as just a regular, non-government person.
It’s one thing for a police officer, on the job and in uniform, to engage in outrageously offensive speech in the course of the performance of his duty. There are a lot of qualifiers in that sentence, as cops don’t lose all free speech rights upon strapping on the gun belt, but they are also subject to constraints when speaking publicly as a police spokesperson. It’s a tricky dance where the line is drawn. Between Pickering and Garcetti, a balancing test was crafted.
- Is the speech about a matter of public concern?
- On balance, does the employee’s interest in speaking outweigh the impact on the employer?
But what about cops using social media in their off hours? Are they not allowed to hold abhorrent beliefs, like pretty much anyone else? Are they not allowed to express those beliefs on social media, like pretty much anyone else? The problem, of course, is when outsiders realize the people expressing these abhorrent beliefs are cops and shine a light on their speech.
At the center of this lawsuit are a bunch of Philadelphia cops who decided to be terrible online. In 2019, accountability activists Plain View Project outed several disturbing social media posts linked to these officers (as well as those made by officers from other major police departments). In response, the Philadelphia police commissioner stated that 13 officers would be fired for their posts, which contained invective targeting several protected groups.
The posts were described by the District Court as having “spanned a multitude of topics such as protestors and their treatment, the use of violence against child molesters, Islam and its followers, refugees, police brutality, and much more.” However, the posts also “ridiculed and belittled members from the LGTBQ community, reportedly using individuals who are transgender as punch lines in their jokes, or worse, threatened violence against them… African Americans, Muslims, Mexicans, and foreign refugees were not spared as Plaintiffs played racist bingo, mocking as many ethnic or religious groups as possible.”
In short, garbage people saying garbage things online. But these people were cops, who are expected to hold themselves to a higher standard.
Are cops held, or at least supposed to be held, to a higher standard? On duty, absolutely. But even cops get to let their hair down after work, when they no longer reflect or represent their employer or occupation, but are just some ordinary assholes saying awful assholish stuff. The problem is that people are allowed to be assholes, to hold assholish beliefs. And they are allowed to say so.
The Appeals Court (mostly) agrees.
The Constitutional guarantee of free expression is a pillar of our democracy, and yet, it can be bitter medicine — particularly when prescribed in defense of social media’s more antisocial viewpoints.
[…]
This Court does not condone the Appellant officers’ use of social media to mock, disparage, and threaten the very communities that they are sworn to protect. While we do not opine on the merits of their suit, our rules of procedure dictate that the Appellant officers have stated a claim of First Amendment retaliation at this juncture.
That’s the thing about the First Amendment. In order for it to provide protection for the best of us, it also has to protect the worst of us. People who never utter anything hateful rarely need to worry about the government stepping on their free speech rights. Horrific criminals sometimes generate the best Fourth and Fifth Amendment case law. Bigoted assholes are, unfortunately, necessary to the establishment of solid First Amendment precedent.
So is there nothing that can be done about the fact that this dirty dozen Philly cops were talking trash? While their First Amendment rights preclude their discharge for their off-duty speech, that doesn’t mean their words can’t be used against them when they’re on the witness stand testifying about how the weed smelled “poignant.”
Tim goes on to list the cops’ names and what, per the decision, they had to say about the nice folks they’re paid to serve and protesct, so that there’s a ready resource for any lawyer crossing these mutts. Ain’t free speech grand?
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By their fruits ye shall know them.
On the pleadings, right? The court hasn’t held that they couldn’t be discharged for their off-duty speech. The case is going back for development of an adequate record to determine the degree of public concern raised by the officers’ posts and the likelihood of disruption to city operations posed by the posts.
While it’s good that the Third Circuit made this decision, it does get tiring in these First Amendment cases over racist, homophobic, whatever hateful speech that the federal courts constantly go out of their way to say that “the court of course does not condone or endorse these comments.” It makes it sound like the judiciary is embarrassed that the First Amendment protects such comments, which isn’t a very robust a defense of free speech.
Maybe the Third Circuit just got this wrong?
Maybe Holmes had it right after all:
“The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.” McAuliffe v. City of New Bedford, 155 Mass. 216, 220, 29 N.E. 517, 517 (1892).
The public has to be able to trust that its police officers aren’t racists. When you spought off stuff on your own time it may demonstrate that you are not qualified to be a police officer (even though though your right to free speech is constitutionally protected).
If the Third Circuit got it wrong, then every other federal appellate court in the country, including the Supremes, got it wrong. That ship sailed a long time ago.
Always interesting where that adoration of free speech comes to a screeching halt.
I don’t know about that. Our circuit’s decision in Ezekwo 940 F.2d 775 (1991) makes me think the Second Circuit would have gone the other way. Speech that is personal in nature is not protected speech for purposes of a constitutional cause of action by public employees. That is, while government can’t prevent you from making racist statements in a text or on a website, you don’t necessarily have a 1983 cause of action if a government employer terminates you for that private speech when the speech is not directed to a matter of public concern. Racist rants, homophobic jokes, etc… do not represent matters of public concern. Its a very interesting issue.
I’m not at all sure that this follows. If an officer performs all official duties in an impartial manner, it should not matter that the officer harbors personal racist sentiments.
The courts have recognized a difference between government acting as government and government acting as employer. The problem for a police department is that it has to police a broad population composed of a broad mix of people. So if you are running a racist website or going on Facebook and making it clear that you work for a police department and the public is given access to your rants, you make it difficult for the police department to do its job and compromised the safety of other officers. What if the police officer is involded in an arrest that results in the death of an arrestee and the racist, ethnic, homophobic slurs and rants become public. Under those circumstances the racsit/bigoted officer has compromised the efficiency of the entire department and exposes their employer to potential Monell liability. So I think under the Pickering balncing test, a court could readily find the speech not constitutionally actionable. It might go the other way if the private speech were truly private, a single text message or email to a friend that was not meant to go public, that kind of thing. In this case the Plain View Project was able to mine facebook postings apparently not set to private. again, this is a very interesting case.
“While their First Amendment rights preclude their discharge for their off-duty speech, that doesn’t mean their words can’t be used against them when they’re on the witness stand testifying about how the weed smelled ‘poignant.’”
Isn’t it likely that the city will try to develop a pre-trial record showing that the very point you make here provides a sufficient basis to terminate the officers?
That’s possible, but then it won’t be for their speech as much as for their inability to credibly testify. Still, some prosecutor’s offices have “do not call” lists and still the cops aren’t fired, so it’s an open question whether that would be sufficient.
This will be part of it. Included in the motion was an assertion that placement of three of the officers on the “Giglio” list rang the bell. The court declined to find that alone sufficient. With the publication of the opinion, of course, all of the officers are now effectively subject to impeachment with their posts, irrespective of their placement on the “Giglio list.”
I would think the City would at this point also be looking at whether the actual duty conduct of the officers shows influence of bias and prejudice.
If the city could show, that these officers did or would act during their service in a way they propagated on the web, then the Pickerering balancing test would show an big overweight on the city’s site.
But your idea not to take them to the test, but to exploit their mental and emotional disabilities for the benefit of your clients – IANAL, but I like this idea.