SOCIAL MEDIA AND LIMITS ON OFFICER’S FIRST AMENDMENT SPEECH

Be careful what you post on social media.

The First Amendment reads:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

Speech includes not just verbal expressions but also forms such as writings, art, music, and symbolic speech. Although public employees may not “be compelled to relinquish the First Amendment rights they would otherwise enjoy as citizens to comment on matters of public interest” (emphasis added) – Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968) – "a citizen who accepts public employment must accept certain limitations on his or her freedom.” Garcetti v. Cabellos, 547 U.S. 410, 418, (2006).

To determine if a public employee’s speech is protected under the First Amendment, the Pickering test is used, where the public employee bears the burden to show:

1. They spoke on a matter of public concern;
2. They spoke as a private citizen rather than a public employee; and,
3. Their interest as a private citizen in speaking on the matter outweighed the efficiency of the public services it performs through its employees.

If the public employee meets his burden, the employer then bears the burden to show:

1. It has an adequate justification for treating its employee differently than other members of the public; or,
2. It would have taken the adverse employment action even absent the protected speech.

An issue is of “public concern” if it "relates to any matter of political, social, or other concern to the community,” or “is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public,” City of San Diego v. Roe, 543 U.S. 77, 83–84, (2004). Speech on matters of personal interest, such as addressing a personal employment dispute or complaints over internal office affairs, is not entitled to constitutional protection as matters of public concern. Hernandez v. City of Phoenix, 43 F. 4th 966 (2022). However, speech that helps citizens make informed decisions about government operations is very likely to be a matter of public concern. McKinley v. City of Eloy, 705 F.2d 1110, 1114 (9th Cir. 1983).

You should be aware that there can be, and often are, consequences for officer speech that would otherwise not exist for citizens, and that you can be disciplined or even fired for speech that would be protected in other contexts. Officer speech is generally handled on a case-by-case basis. But be careful before you post to social media, and when in doubt, take additional steps to ensure your profile is distinct from your work as a peace officer and that you are commenting on matters of public concern.