[co-author: J. Todd Bernhardt]

On June 8, 2023, the United States Court of Appeals for the Third Circuit held in Fenico v. City of Philadelphia that police officers disciplined for offensive Facebook posts stated a First Amendment claim sufficient to survive a motion to dismiss. The court avoided commenting on the merits of the officers’ case. But it described the “offensive, racist, and violent” posts as “social media’s more antisocial viewpoints” and validated Philadelphia’s interest in “protecting a perception that police exist to serve the entire community.”

Ultimately, however, the appellate court reversed and remanded the case for factual development. The district court needed to develop a factual record to weigh the First Amendment value of the posts against the government’s interests.

The officer’s Facebook posts were identified by the Plain View Project, which published an online database of over 5,000 Facebook posts and comments by police officers that reflected the officers’ views on “race, religion, ethnicity, and the acceptability of violent policing.” After learning about these posts, the Philadelphia Police Department investigated and disciplined seventy-two officers. Many were formally charged with violating the “Conduct Unbecoming” or “Neglect of Duty” provisions of the department’s Disciplinary Code. Some were also charged with violating the department’s “Social Media and Networking” policy.

Twelve officers sued the city, alleging their Facebook posts were protected by the First Amendment. They claimed their punishment violated the Constitution. The district court disagreed. Based on the pleadings alone, the court concluded the posts had little to no First Amendment value. The posts, thus, could not outweigh the government’s interest in suppressing that speech.

The Third Circuit reversed because the record was factually undeveloped. Specifically, it was not clear if certain posts were actually authored by the police officers. Likewise, it was not clear which posts formed the basis of the department’s discipline. Finally, the record contained only speculation about the potential disruption to the department from the officers’ Facebook posts, many of which had been public for years.

For the posts to be protected by the First Amendment, the Circuit Court reiterated that they must satisfy the Pickering balancing test. Under Pickering, courts weigh the government employee’s interest in speaking on a matter of public concern against the government’s interest in avoiding disruption to its operations. This is not a threshold test, but rather a sliding scale. When the government employee is speaking on an issue of greater public concern, public employers have to prove greater disruption to justify taking action against the speech. Likewise, when the employee is speaking on an issue of lesser public concern, the public employer need only prove lesser disruption.

The Third Circuit held that it needed a more developed record to conduct the Pickering balancing test. On remand, the Circuit Court instructed the district court to develop a record which could support an individual analysis of the twelve speakers and their 250 discrete statements.

Despite the unfavorable holding for the city, the Third Circuit noted that established caselaw grants heavy deference to public employer’s interpretations of employee speech and prediction of disruption, especially where the employer has performed an internal investigation.

In light of this decision, public employers should take stock of their social media policies and internal investigation practices. When a government employee makes a vulgar, offensive, racist, or violent post on their personal social media account, employers in the public sector should look closely at the communication and whether it concerns any social or political issues that may be of public concern. As an example, the Supreme Court in the Snyder v. Phelps case upheld a broad range of highly offensive signage that targeted Catholics, soldiers, and the LGBTQ community as speech related to issues of public concern.

Likewise, public sector employers should take care to gather evidence of potential disruption to their operations. If the city had provided “concrete support” of disruption to their operations that the social media posts had caused or were likely to cause, the court may well have decided differently. Make sure you have a sufficiently detailed record before termination, otherwise the “bitter medicine” of the First Amendment could protect that offensive social media post and shield the employee who wrote it.