No First Amendment Violation In Facebook Case

By Anil Karia

Maria Gresham was employed by the City of Atlanta as a police officer. She maintained a Facebook page, set to “private,” that was available for viewing by a number of her “friends,” who could share her posts more widely. Gresham made critical comments on her Facebook page about a fellow Atlanta officer for allegedly unethically interfering with Gresham’s investigation of a person she had arrested for fraud and financial identity theft. When alerted to the Facebook comment, the Department’s Office of Professional Standards opened an investigation, alleging that Gresham had violated the Department’s work rule requiring that any criticism of a fellow officer “be directed only through official Department channels, to correct any deficiency, and…not be used to the disadvantage of the reputation or operation of the Department or any employees.”

During the investigation, Gresham was passed over for promotion. In response, she sued the Department in federal court, alleging that she was denied a promotion in retaliation for her critical Facebook posts, in violation of the First Amendment. The Department countered that Gresham was not eligible for promotion because of its policy not to consider candidates for promotion if they had disciplinary investigations pending against them.

The Eleventh Circuit Court of Appeals agreed with the Department, holding that the Department had not violated Gresham’s free speech rights. In analyzing whether Gresham’s Facebook post was protected First Amendment speech, the Court applied a 45-year-old Supreme Court test: (1) whether Gresham’s speech involved a matter of public concern; (2) whether Gresham’s interest in speaking outweighed the Department’s legitimate interest in efficient public service; (3) whether the speech played a substantial part in the Department’s challenged employment decision; and (4) whether Defendant would have made the same employment decision even in the absence of the protected speech.

The Court assumed that Gresham’s speech implicated a matter of public concern, and focused on the second prong of the analysis, in which it balanced Gresham’s interest in speaking against the Department’s legitimate interest in efficient operations. The Court determined that as a quasi-military operation, the Department’s operational interest in directing criticism of a fellow officer through official channels far outweighed Gresham’s interest in speaking on a private Facebook page.

It is “undisputed that Gresham violated the work rule requiring criticism of the Department or fellow officers to be directed only through Department channels. If the Department’s investigation thereof were deemed First Amendment retaliation, that would have a tendency to render such a rule unenforceable and would encourage employees to circumvent the Department’s investigation processes, thus impeding the Department’s investigations and ability to correct problems. In addition, common experience teaches that public accusations of unethical conduct against fellow officers would have a natural tendency to endanger the esprit de corps and good working relationships amongst the officers. Thus, we conclude that there is actual evidence in this record of a reasonable possibility of disruption of the legitimate interests of the Department.

“In this regard, we note that the context of Gresham’s speech is not one calculated to bring an issue of public concern to the attention of persons with authority to make corrections, nor was its context one of bringing the matter to the attention of the public to prompt public discussion to generate pressure for such changes. Rather…the context was more nearly one of Gresham’s venting her frustration with her superiors. Thus, we conclude that Gresham’s speech interest is not a strong one, a factor which the Supreme Court has indicated is appropriate to consider in the balancing process. Moreover, even if Gresham’s speech interests were somewhat stronger, we conclude that the Department’s interest is considerable, and that the balance clearly tilts in favor of the Department.”

Gresham v. City of Atlanta, 2013 WL 5645316 (11th Cir. 2013).