By David E. Mastagni and Taylor Davies-Mahaffey

The phenomenon that is social media is not new nor novel in today’s society. Yet social media’s impact on speech and its overlap with the First Amendment continues to evolve and present the American legal system with unique challenges and fact patterns that are separate and unique from more historical speech matters, particularly in the context of an individual’s employment.

In Hernandez v. City of Phoenix, the Ninth Circuit Court of Appeals issued an opinion addressing the types of posts that involve matters of public concern and therefore are protected by the First Amendment. Hernandez provides important guidance on what type of speech is protected under the First Amendment and how government agencies/employers can implement social media policies that are in compliance with the First Amendment.

In 2013 and 2014, Sergeant Juan Hernandez of the Phoenix Police Department made a series of social media posts that denigrated Muslims and Islam. The posts were made off duty, and Sergeant Hernandez did not directly create a nexus to his employment as a member of the Phoenix Police Department; however, other posts on his account did depict him in uniform. The posts did not create any controversy until 2019, when an organization called the Plain View Project obtained the posts and drew public and media attention to them. The Plain View Project monitors and collects certain law enforcement organizations’ social media activity to create oversight and dialogue related to what they deem potentially problematic social media activity.

Following the release of these posts by the Plain View Project and the subsequent backlash received from the public, the department conducted an internal affairs investigation and determined that Sergeant Hernandez violated its social media policy, specifically finding his posts “potentially reduced or contributed to the erosion of public trust, were inflammatory to certain groups, and/or created dissension in the community by promoting hate, violence, racism, bias, or beliefs inconsistent with the Phoenix Police Department’s Purpose Statement and Guiding Values.” Before discipline could be imposed, Sergeant Hernandez sued in federal court because the department retaliated against him for his First Amendment–protected speech and that the department’s social media policy was unconstitutional as it was drafted in an overbroad and vague manner.

The federal district court granted the City of Phoenix’s motion to dismiss, holding that the City of Phoenix did not retaliate against Sergeant Hernandez and that he was in violation of the First Amendment because his speech did not constitute a matter of public concern. Additionally, the court concluded that the department’s social media policy was not overbroad or vague; Sergeant Hernandez then appealed to the Ninth Circuit.

The Ninth Circuit reversed in part, finding the district court erred in its dismissal of Sergeant Hernandez’s First Amendment retaliation claim. Here, the court employed the Pickering balancing test, where the government employee bears the initial burden of showing that he spoke on a matter of public concern in their capacity as a private citizen. If the employee successfully proves that requirement, the speech is entitled to constitutional protection, and the possibility of a First Amendment claim arises. Then, the burden shifts to the government employer to show that it had the justification for disciplining the employee for their speech. In order to sustain its burden, the employer must show that its legitimate interests in performing its mission outweigh the employee’s right to speak freely.

The Ninth Circuit determined that Sergeant Hernandez’s posts were, in fact, a matter of public concern, specifically holding that Sergeant Hernandez’s posts “addressed matters of social or political concern that would be of interest to others outside of the Phoenix Police Department. Even if only ‘a relatively small segment of the general public’ might have been interested in the subject of Hernandez’s posts, that is sufficient.” Moreover, Sergeant Hernandez’s posts were made on his own time, on his personal Facebook page, outside the workplace and with an intended audience not just limited to fellow employees but the general public as a whole.

With the Pickering balancing test in mind and the court establishing that Sergeant Hernandez’s social media posts constituted a matter of public concern, rather than analyzing the remaining steps of the balancing test, the Ninth Circuit remanded the case back to the district court due to it dismissing Sergeant Hernandez’s First Amendment retaliation claim at the motion to dismiss phase.

In its decision to remand, the Ninth Circuit provided the following guidance in regard to the content and value of Sergeant Hernandez’s speech and the interests of law enforcement agencies’ necessity to discipline an employee’s speech in certain situations (citations omitted):

“In remanding the case, we do not mean to suggest that the Department will face a particularly onerous burden to justify disciplining Hernandez for his posts, given the comparatively low value of his speech. Government employee speech that exposes wrongdoing or corruption within the employee’s own agency lies at ‘the apex of the First Amendment’ in this context. Needless to say, Hernandez’s Facebook posts occupy a much lower rung on the First Amendment hierarchy, and indeed they touched on matters of public concern ‘in only a most limited sense.’ On the other side of the scale, a police department’s determination that an officer’s speech warrants discipline is afforded considerable deference and police departments may permissibly consider the special status officers occupy in the community when deciding what limitations to place on officers’ off-duty speech. Speech by a police officer that suggests bias against racial or religious minorities can hinder that officer’s ability to effectively perform his or her job duties and undermine the department’s ability to effectively carry out its mission.”

Regarding Sergeant Hernandez’s challenge to the department’s social media policy, the Ninth Circuit agreed with most of the district court’s decision as it relates to the department’s social media policy. The court found the district court appropriately rejected Sergeant Hernandez’s argument that the department’s social media policy was overbroad and/or vague by prohibiting posts that are “detrimental to the mission and functions of the Department”; “Undermine the goals and mission of the Department or City”; or “Undermine respect of public confidence in the Department.” However, the Ninth Circuit found that the following provisions were overbroad, “Employees are prohibited from using social media in a manner that would cause embarrassment to or discredit the Department in any way,” as well as, “Department personnel may not divulge information gained while in the performance of their official duties.”

Under the Ninth Circuit’s “public concern” analysis, social media posts public agencies consider problematic may nevertheless be First Amendment–protected speech. Public agencies must prove how specific social media posts impact and disrupt the agency’s ability to operate effectively and interact with the public due to the protections associated with such speech. The court did indicate hateful/bigoted speech receives a lesser degree of First Amendment protection and employers have an easier burden to prove disruption. However, agencies that fail to narrowly draft their social media polices may be barred from enforcing the policies through discipline and may also be subject to liability for civil rights violations.