First Federal Appeals Court Plain View Project Case

This article appears in the October 2022 issue of our monthly newsletter, Public Safety Labor News.

The Plain View Project (PVP) was started in 2016 by a group of Philadelphia attorneys who believed that what they identified as racist and religiously biased social media posts by law enforcement officers “could erode civilian trust and confidence in police.” The PVP “hoped that police departments will investigate and address them immediately.”

In 2019, when the PVP posted the database of social media posts it had created covering the posts for several agencies across the country, disciplinary investigations were begun in most of the targeted agencies. Hundreds of officers were disciplined as a result, with the discipline ranging from reprimands to termination.

Phoenix Police Sergeant Juan Hernandez was one of the individuals whose posts were targeted by the PVP. In a series of posts in 2013 and 2014, Hernan­dez reposted a variety of anti-Muslim memes. For more than five years, none of these posts came to the attention of the public or caused any turmoil within the Department.

That changed when the PVP published a collection of posts from various officers of the Phoenix Police Department. Many of the posts reflected bias against racial or religious minorities or contained content that would be offensive to members of such groups. The PVP’s publication of these posts, which included 11 posts from Hernandez, generated a firestorm of public criticism of the Department and considerable negative media attention.

The Department notified Hernandez that he was facing discipline ranging from a suspension of 40 hours without pay up to termination. Before the final disciplinary decision was made, Hernandez and the Arizona Conference of Police and Sheriffs (AZCOPS) filed a lawsuit seeking a preliminary injunction barring the City from disciplining Hernandez for his Facebook posts. Any such disciplinary action, they argued, would violate his First Amendment free speech rights.

The case eventually made its way to the Ninth Circuit federal court of appeals, which issued a mixed ruling on the constitutionality of the Department’s social media policy.

The Court began its opinion by sketching out the burden of proof in free speech litigation: “Under what has become known as the Pickering balancing test, a government employee bears the initial burden of showing that he spoke on a matter of public concern and that he did so in his capacity as a private citizen, rather than as an employee. If the employee succeeds in making that threshold showing, his speech is entitled to constitutional protection and the possibility of a First Amendment claim arises. The burden then shifts to the government em­ployer to show that it had an adequate justification for punishing the employee

for his speech. To sustain its burden, the employer must show that its own legiti­mate interests in performing its mission outweigh the employee’s right to speak freely. The objective of this framework is to strike a balance between the in­terests of the employee, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.

“What constitutes speech on a ‘matter of public concern’ remains somewhat hazy, despite the decades that have passed since the concept was first employed. To determine whether an employee’s speech addressed a matter of public concern, we consider the content of the statements, the form (time, place, and manner) of the statements, and the context in which the statements were made. Analyz­ing those elements here leads us to conclude that Hernandez’s Facebook posts qualify as speech on matters of public concern.

“As for content, Hernandez’s posts assuredly did not address an internal workplace grievance or complaints about internal office affairs. They instead addressed matters of social or political concern that would be of interest to others outside the Phoenix Police Department. Both form and context also weigh in Hernandez’s favor. Hernandez posted each of the items at issue on his own time, outside the workplace, using his per­sonal Facebook profile. The intended audience of his posts was not limited to Hernandez’s fellow employees, and the posts could be viewed by any member of the public. Publicly post­ing on social media suggests an intent to ‘communicate to the public or to advance a political or social point of view beyond the employment context.’

“We would ordinarily proceed to the next step and assess whether the Department has shown an adequate justification for punishing Hernan­dez’s otherwise protected speech. We cannot do so here, however, because the trial court dismissed Hernandez’s First Amendment retaliation claim at the motion-to-dismiss stage. The fac­tual record before us is therefore lim­ited to the allegations in the amended complaint and documents incor­porated by reference. We therefore reverse the district court’s dismissal of Hernandez’s First Amendment re­taliation claim and remand for further development of the factual record.

The Court then turned to Her­nandez’s “facial challenges” to certain provisions of the Department’s social media policy, particularly to provi­sions of the policy prohibiting social media posts “that are detrimental to the mission and functions of the Department, that undermine respect or public confidence in the Depart­ment, could cause embarrassment to the Department or City, discredit the Department or City, or undermine the goals and mission of the Department or City.”

The Court once again found the lack of a factual record troubling: “Because the trial court dismissed plaintiffs’ facial overbreadth challenge on the pleadings, we are again left without a developed factual record as to the harms on which the Depart­ment relies to justify imposition of its social media policy. But most of the restrictions challenged here directly promote the same interests that the Supreme Court has already held to be valid bases for imposing restrictions on public employee speech. As noted earlier, government employers have a strong interest in prohibiting speech by their employees that undermines the employer’s mission or hampers the effective functioning of the employer’s operations. That interest justifies the policy’s restrictions on social media posts that are ‘detrimental to the mis­sion and functions of the Department’ or which ‘undermine the goals and mission of the Department or City.’ Police departments also have a strong interest in maintaining a relationship of trust and confidence with the com­munities they serve, which justifies the policy’s restriction on speech that would ‘undermine respect or public confidence in the Department.’ Given how closely these clauses of the policy track interests that the Department may constitutionally pursue, we cannot say that a ‘substantial num­ber’ of the policy’s applications are unconstitutional, judged in relation to the policy’s ‘plainly legitimate sweep.’

“We reach a different conclusion with respect to the clauses of the policy prohibiting speech that would ‘cause embarrassment to’ or ‘discredit’ the Department – most notably the provision that states: ‘Employees are prohibited from using social media in a manner that would cause embarrass­ment to or discredit the Department in any way.’ The Department does not have a legitimate interest in pro­hibiting speech merely because the Department might find that speech embarrassing or discrediting, just as it does not have a legitimate interest in prohibiting all negative or disparaging speech about the Department.

“The Department has a legitimate interest in prohibiting embarrassing or discrediting speech to the extent such speech could reasonably be expected to disrupt the workplace, hinder the Department’s mission, or undermine the public’s confidence in and respect for the Department. But the social media policy already prohibits speech generating those detrimental effects. And unlike those more targeted prohi­bitions, the ‘embarrass’ and ‘discredit’ clauses are entirely self-regarding and not constrained by any demonstrable impact on the Department or its ability to function. It is thus far from clear what additional work the ‘embarrass’ and ‘discredit’ clauses could be doing here, beyond broadening the scope of the policy to authorize discipline for social media activity that the De­partment may not have a sufficiently strong interest in prohibiting. That is particularly concerning from an over­breadth standpoint because virtually all speech that lies at the core of First Amendment protection in this area – for example, speech exposing police misconduct or corruption – could be expected to embarrass or discredit the Department in some way.

“Plaintiffs separately challenge the policy’s provision that ‘Department personnel may not divulge informa­tion gained while in the performance of their official duties.’ We do not think plaintiffs’ facial overbreadth challenge to this provision can be re­jected at the motion-to-dismiss stage either. Although the Department has a strong interest in prohibiting the disclosure of confidential informa­tion, such as information that could jeopardize ongoing investigations, the challenged provision sweeps much more broadly. It prohibits the disclo­sure of any information gained while on the job.

“Public employees are uniquely positioned to expose wrongdoing or corruption within their agencies precisely because they acquire in­formation while on the job to which the public otherwise lacks access. A policy that prohibits public employees from divulging any information ac­quired while on the job would silence speech that warrants the strongest First Amendment protection in this context. For that reason, the provision challenged here ‘must be tailored to protect information the government has a legitimate interest in keeping confidential.’ Because plaintiffs’ challenge was resolved on the plead­ings, the Department has not yet had an opportunity to produce evidence attempting to establish that this pro­vision is appropriately tailored.”

Hernandez v. City of Phoenix, 2022 WL 3132422 (9th Cir. 2022).

Also in the October 2022 issue:

  • Phoenix And Plain View Project In State Court
  • Disagreement With Tactics Not Basis For Claim Against Union
  • Murder Of Ex-Wife Results In Loss Of Pension Benefits
  • Calculating Offsets Against Back Pay
  • Union Does Not Breach DFR By Refusing To Bargain Seniority Issue
  • Iowa’s New Brady Statute Grants Protections To Officers
  • City Must Bargain Placement Of Surveillance Devices In Non-Public Areas Of Fire Department
  • Transfer Of Police Work To Security Officers Is Unlawful ‘Skimming’
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