Facebook Posts by Police Officer Not Protected by the 1st Amendment

Public-sector employers can add yet another “W” in the “Win” column on the Facebook-firing scorecard.  The victory comes by way of a federal court in Mississippi where, earlier today, a judge granted summary judgment to the City of Greenville in a First Amendment claim brought by a former police officer, Susan Graziosi.

Graziosi was employed by the Greenville Police Department for 26 years at the time she posted a series of comments on her Facebook page and the Facebook page of the then-mayor, complaining that the Chief of Police had not sent police-officer representatives to the funeral of an officer killed in the line of duty. 3d police officer

The comments weren’t outrageous, frankly.  No profanity, for example.  They were, however, decisively negative about the Chief’s leadership of the Department. 

Upon learning of the comments, the Chief spoke to the City Attorney and expressed concern about his ability to lead the Department in light of Graziosi’s posts.  Her employment was subsequently terminated for her violation of several Department policies, including Supporting Fellow Employees, Insubordination, and Discipline & Accountability. 

Graziosi appealed to the City Council but the termination decision was upheld and she filed a First Amendment retaliation claim in federal court.  Regular readers of this blog are likely more familiar than they’d like to be with the applicable test for a First-Amendment claim.  But, hey, it’s a classic, so bear with me while I go through it again.

In order for a public-sector employee to state a claim under the First Amendment in a “Facebook-firing” case, the court must determine that the speech at issue is entitled to constitutional protection and that the employee’s free-speech interests outweigh the employer’s interest in maintaining an efficient and effective workplace.  A review of any of the cases discussed in my previous posts (see the links, below), shows that the analysis usually comes out in the employer’s favor.  This is especially so in police and other paramilitary institutions because the law recognizes the need to maintain discipline and good working relationships amongst employees. 

And that is precisely what the court determined in this case, too. The court held that Graziosi’s venting on Facebook did not enjoy First Amendment protection.  Moreover, the Chief’s interest in maintaining his authority and preserving close working relationships outweighed any constitutional protection Graziosi’s speech may have had.  Thus, the court concluded, Graziosi’s termination was entirely lawful. 

Another win for employers in the workplace battle involving social media.

Graziosi v. City of Greenville, No. 4:12-cv-68-MPM-DAS, 2013 U.S. Dist. LEXIS 172581 (N.D. Miss. Dec. 3, 2013).

See also

Fed. Ct. in Oregon Upholds Facebook Firing of DHS Employee

Facebook Post Leads to Complaint, Leads to Termination, Leads to Lawsuit

11th Cir. Upholds Discipline of Police Officer for Facebook Post

No Privacy Claim for Use of Student’s Facebook Picture

Is There a Reasonable Expectation of Privacy In Your Tweets?

Police Officers Online: Web 2.0 Worries for Public Employers

Employee’s Facebook Posts Protected by First Amendment

Government Employers Can (and Should) Have a Social Media Policy, Part 1, Part 2, Part 3 (an in-depth discussion of the First Amendment protections for public-sector employees’ speech, including speech made via Facebook).

image

And, if you haven’t yet cast your vote for the Delaware Employment Law Blog in the Labor & Employment category in this year’s ABA Journal Top 100 Blawgs, there’s still time!  Voting closes next Friday, December 20, though, so don’t delay.  And thank you!

Another Facebook Firing Is Upheld

Employees in the private sector do not have free-speech rights in their employment, contrary to popular belief.  Employees in the public sector, on the other hand, do have such rights, although they are not limitless. When it comes to First Amendment challenges to Facebook firings, employers continue to prevail in nearly every case.  Here is another such victory.

The plaintiff worked as a case worker for child-protective services investigating reports of child abuse and neglect.  In that role, she was charged with determining whether a child was safe in his or home.  If she determined that the home was unsafe, she worked with the District Attorney’s Office to petition the court for protective custody.  She testified in court about eight times a month.

In making these determinations, she was not supposed to consider the employment status, religious beliefs, or political beliefs of the adults in the home and was not to concern herself with how they chose to spend their money or furnish their home.

Plaintiff, of course, had a Facebook page.  In her profile, Plaintiff identified herself as a case worker for the Department of Human Services (DHS).  Her Facebook profile did not include a disclaimer that the opinions were her own and not those of her employer.  Plaintiff had hundreds of Facebook friends, including a judge, at least three deputy district attorneys, several defense lawyers, and more than a dozen law-enforcement officers.

She posted several negative comments about clients who drove luxury vehicles or had expensive home-entertainment systems.  In another post, she proposed a set of “rules for society,” which included:

(1) If you are on public assistance, you may not have additional children and must be on reliable birth control . . . (2) If you’ve had your parental rights terminated by DHS, you may not have more children . . . (4) If you are on public assistance, you may not own a big flat screen television; . . . (6) If you physically abuse your child, someone should physically abuse you.

A copy of the posts were forwarded to the Director of HR at DHS.  When confronted with the posts, Plaintiff admitted that she had written them and that she did hold some of the opinions that she’d expressed in the posts.  She was put on administrative leave while the matter was investigated.

As part of the investigation, the Director of HR spoke with the attorneys at the District Attorney’s office and Department of Justice that plaintiff worked with most often.  The attorneys expressed concern that the Facebook posts would be subject to discovery and that they would have to be disclosed to defense attorneys in any case involving physical abuse.  They also said that she would likely be questioned about the posts, which would be detrimental to the agencies’ ability to effectively prosecute these cases.  In effect, they said, the credibility and neutrality required of a DHS case worker had been all but destroyed, rendering her virtually useless a witness for the prosecution.  As a result, her employment was terminated.

She filed suit, alleging that her termination constituted a violation of her constitutional right to free speech.  The suit was dismissed on summary judgment.  The court explained that, even assuming the speech was subject to the protections of the First Amendment (i.e., that it was on a topic of public concern), the employer’s interests outweighed the employee’s.

This case serves as a good reminder to public- and private-sector employers alike that, when presented with information about an employee’s Facebook or other social-networking posts, the best course of action is a calm and rational one.  Investigate like you would with any other complaint.  If the online conduct impairs the employee’s ability to perform the essential functions of the job or if it causes real disruption to the employer’s operations, discipline may be in order.

Shepherd v. McGee, No. 03:12-02218-HZ, 2013 U.S. Dist. LEXIS 159432 (D. Ore. Nov. 7, 2013).

See also

Facebook Post Leads to Complaint, Leads to Termination, Leads to Lawsuit

11th Cir. Upholds Discipline of Police Officer for Facebook Post

No Privacy Claim for Use of Student’s Facebook Picture

Is There a Reasonable Expectation of Privacy In Your Tweets?

Police Officers Online: Web 2.0 Worries for Public Employers

Employee’s Facebook Posts Protected by First Amendment

Government Employers Can (and Should) Have a Social Media Policy, Part 1, Part 2, Part 3 (an in-depth discussion of the First Amendment protections for public-sector employees’ speech, including speech made via Facebook).

Facebook Post Leads to Police Complaint, Leads to Termination, Leads to Lawsuit

Employee posts “unpleasant” comment on Facebook.  The subject of that comment complains to employee’s employer.  Employer terminates employee.  Employee sues the complaining party-not the employer.  Interesting, right?  Here’s the case.

The plaintiff alleged that she worked as a case manager in San Antonio public schools.  She claimed that she alerted the San Antonio Police Department (SAPD), when she learned that an individual subject to a restraining order had contacted a student in violation of that order.  Officers were dispatched to the student’s home but no action was taken because the officers did not believe there to be a valid protective order in place.  

The plaintiff, believing that an order did exist, was frustrated by her feeling that the officers “did not want to do their job to protect her student.”  From her home later that day, the plaintiff posted to her Facebook account a profanity-laden comment about the “lazy ass, mother-effers on B-shift who don’t care to do their jobs the way they’re supposed to.”

The plaintiff’s husband, who was also an officer on the SAPD, allegedly received unspecified threats from other officers.  The plaintiff also claimed that a copy of her Facebook posting was displayed at the police station.

About a week later, the plaintiff claims that two officers went to the high school where the plaintiff was assigned and told the principal that they needed to speak with the plaintiff about “a complaint.”  The plaintiff claims that, after she arrived, one officer told the principal that the plaintiff should be disciplined for her Facebook message and that failure to do so would “endanger relations” between the police department and the high school.  The plaintiff also claims that one of the officers demanded that she apologize for the posting but that she refused to do so, citing her right to free speech.

She was fired the following day.  She sued the individual officers and the SAPD on a variety of constitutional grounds. The defendants moved to dismiss.

Most of the claims were dismissed but her First Amendment claim survived.  She had, after all, alleged that she engaged in constitutionally protected activity-i.e., her Facebook post.  She also claimed that the police officers told the principal that, unless the plaintiff was disciplined for that protected speech, the school’s relationship with the police department would be “endangered.”  And she was terminated the next day. 

Those facts, the court concluded, were sufficient to establish the cause-and-effect relationship necessary to survive a motion to dismiss.  As I indicated above, this case is particularly interesting because the employee did not sue her employer but, instead, sued the police-the party that she believes caused her employer to terminate her employment. 

Had she sued the employer, her claims would have been subject to a different analysis and would likely have come out in the employer’s favor.  This tactic wouldn’t work in every situation-it works here only because the complaining party (the SAPD), is a public entity.  If private citizens had complained, the plaintiff would have had very different claims.  For an example, see this recent post about a lawsuit brought by an employee about a customer who complained about the employee via social media

Do these cases indicate an expansion of likely defendants?  Will there be less lawsuits against employers or just more lawsuits altogether? 


Perez v. Tedford, No. SA-13-CV-429-XR, 2013 U.S. Dist. LEXIS 151149 (W.D. Tex. Oct. 22, 2013).

See also 11th Cir. Upholds Discipline of Police Officer for Facebook Post

No Privacy Claim for Use of Student’s Facebook Picture

Is There a Reasonable Expectation of Privacy In Your Tweets?

Police Officers Online: Web 2.0 Worries for Public Employers

Employee’s Facebook Posts Protected by First Amendment

Government Employers Can (and Should) Have a Social Media Policy, Part 1, Part 2, Part 3 (an in-depth discussion of the First Amendment protections for public-sector employees’ speech, including speech made via Facebook).

11th Cir. Upholds Facebook Discipline of Police Officer

Here’s another Facebook-firing case to add to the “win” column for public-sector employers. [FN1] The plaintiff-police officer, Maria Gresham, posted comments on her Facebook page critical of another officer’s involvement in an arrest Gresham had made. Her Facebook page was “set to private” but, of course, the Department got wind of the comments and an investigation was initiated. bullhorn blue background_3

The plaintiff was alleged to have violated the Department’s work rule requiring that any criticism of a fellow officer “be directed only through official Department channels . . . and not be used to the disadvantage of the reputation or operation of the Department or any employees.” [FN2]

While the investigation was pending, Plaintiff was not able to post for the several promotions that came open. Thus, she sued, alleging that she was not promoted in retaliation for her First Amendment speech on Facebook.

The District court held that, although the Facebook post did constitute protected citizen speech on a matter of public concern (thus satisfying 2 of the 3 requirements), the City’s interests in maintaining order and discipline outweighed the interest of the employee. The employee sued.

On appeal, the legal analysis came down to whether the employer was required to prove that the conduct at issue (the Facebook comments) actually caused a disruption or whether it was enough that the employer reasonably believed that a disruption would occur. The 11th Circuit sided with the government-employer, finding that the government has a legitimate interest in avoiding disruption. Therefore, the employer need not wait until an actual disruption occurs.

Yet another victory for public employers in the growing body of case law in the area of First Amendment free speech and social media.

[FN1] Technically, it’s a Facebook-failure-to-promote case. But you get the idea.

[FN2] Does this policy really work? Do employees go through “official channels” every time they want to gripe about a co-worker. If my employees were lined up outside my door to file petty complaints about who took whose sandwich from the shared refrigerator, I would surely run for the door.

Gresham v. City of Atlanta, No. 1:10-cv-1301-RWS, 2011 U.S. Dist. LEXIS 113347 (N.D. Ga. Sept. 30, 2011), aff’d No. 12-12968, 2013 U.S. App. LEXIS 20961 (11th Cir. Oct. 17, 2013).

See also

No Privacy Claim for Use of Student’s Facebook Picture

Is There a Reasonable Expectation of Privacy In Your Tweets?

Police Officers Online: Web 2.0 Worries for Public Employers

Employee’s Facebook Posts Protected by First Amendment

Government Employers Can (and Should) Have a Social Media Policy, Part 1, Part 2, Part 3 (an in-depth discussion of the First Amendment protections for public-sector employees’ speech, including speech made via Facebook).

No Privacy Claim for Use of Student Facebook Picture

At a seminar about Internet safety, the District’s IT Director gave a presentation designed to illustrate the permanent nature of social-media posts and how your posts could be embarrassing if published by third parties.  One of the slides in the Director’s presentation, titled, “Once It’s There-It’s There to Stay” showed a photo of a student in a bikini and standing next to a life-size cut-out of the rapper Snoop Dog. Continue reading

Judicial Notice of LMAO

In preparing for an upcoming social-media seminar, I was reviewing my always-expanding research file of cases that address social media in employment law.  It’s a challenge to keep up with all of the new case law as it is decided so it’s a rarity that I re-read opinions.  But, when I do, I almost always stumble across a jewel or two that I didn’t notice in the first (or second) reading. 

One such case is Spanierman v. Hughes, which was one of the earliest cases involving what I now call a “Facebook firing.”  The case, decided in 2008, was decided pre-Facebook, though, so the social-media site in question was MySpace. 

The case was an important one for public-sector employers, upholding the decision to terminate a teacher who posted unprofessional content on his MySpace page and used his account to communicate even less professional and sometimes inappropriate messages with his students.  The teacher brought his suit under the First Amendment, arguing that the content and messages constituted protected free speech.

But this time around, I noticed a footnote that I’d not caught in my first readings of the case.  Specifically, the court took judicial notice of some abbreviations that are now part of our everyday vernacular.  The court also takes judicial notice of the definition of an “emoticon” and even provides some examples!

Judicial notice, if you’re not familiar with the term, is a way for the court to accept as true a fact that is not in the record but that is not subject to dispute.  For example, a court could take judicial notice of the distance between two locations by referencing a map (or, in today’s world, MapQuest, I suppose).  Here’s the text of the footnote, in case any lawyers who are reading someday want to cite a case as support for what “LOL” and “LMAO” stand for:

The court has not altered the contents of this or any other exchange taken from the Plaintiff’s MySpace profile page. The court takes notice that spelling and grammatical rules are not always closely followed in such casual or informal online exchanges, and that oftentimes certain phrases are abbreviated or expressed in a form of shorthand (e.g., “LOL” can mean “laughing out loud,” and “LMAO” can mean “laughing my ass off”). Furthermore, such exchanges often contain so-called “emoticons,” which are symbols used to convey emotional content in written or message form (e.g., “:)” indicates “smile” or “happy,” and “:(” indicates “frown” or “sad”).

A more recent decision in which it appears that the judge took judicial notice of the existence of an entire Facebook page was reported on the Bow Tie Law Blog.  That decision has far greater legal significance but it’s not quite as much fun as the “LMAO footnote” discussed above. At least that’s IMHO.  ;o)

Spanierman v. Hughes, 576 F. Supp. 2d 292, 312-313, n.13 (D. Conn. 2008).

See also

Workplace Email: The Devil Made Me Do It

Why I May Have to Eat My Emoticons

Is There a Reasonable Expectation of Privacy In Your Tweets?

Privacy law is a hot topic these days.  In both the public and private sectors, employees’ privacy rights are governed by whether or not the employee had a reasonable expectation of privacy.  In the private sector, this is a common-law tort for the invasion of privacy.  In the public sector, it becomes a constitutional question under the Fourth Amendment. twitter bird_thumb

An interesting case from the District of Nevada earlier this month demonstrates the Fourth Amendment analysis in the context of social media. In Rosario v. Clark County School District, a student brought a Fourth Amendment claim after he was disciplined because of tweets (i.e., posts to Twitter), he had made that were critical of the school and its faculty.[1] The student argued that he had a reasonable expectation of privacy in his tweets because a limited audience (his followers) viewed or read his tweets.

The court rejected this argument, explaining:

When a user with a public privacy setting tweets a message, he or she intends the message to be heard by the public at large. It just happens that typically the only people that read the tweet are the users’ followers. A tweet from a user with public privacy settings is just a twenty-first century equivalent of an attempt to publish an opinion piece or commentary in the New York Times or the Las Vegas Sun. When a person with a public privacy setting tweets, he or she intends that anyone that wants to read the tweet may do so, so there can be no reasonable expectation of privacy.[2]

This reasoning is consistent with the idea that there is no “limited-audience” expectation of privacy. In other words, once an individual publishes information to another person, absent a lawful privilege, such as the attorney-client or spousal privilege, the individual has no reasonable expectation of privacy in that information. Once it has been published to another, it is no longer protected.

The Rosario court affirmed this principle, stating:

A Twitter user with his or her privacy setting set to private has a more colorable argument about the reasonable expectation of privacy in his or her tweets than a user with a public setting. However, even with a private account, the user is still disseminating his postings and information to the public, and they are not protected by the Fourth Amendment.[3]

The court elaborated that, when a person “tweets on Twitter to his or her friends, that person takes the risk that the friend will turn the information over to the government.[4]

One of the cases cited in the Rosario decision similarly supports this holding. In United States v. Meregildo, the Southern District of New York held that the government does not violate the Fourth Amendment by gaining access to a Facebook page through a cooperating witness who is Facebook friends with the account holder. [5]

Thus, the Rosario decision is consistent with the case law. Unfortunately, many courts have not been quite this consistent when determining whether a reasonable expectation of privacy exists in social-media content in the context of discovery disputes.


[1] No. 2:13-CV-362 JCM (PAL), 2013 U.S. Dist. LEXIS 93963 (D. Nev. July 3, 2013).

[2] Id. at *15

[3] Id. at *16 (internal quotations omitted).

[4] Id. (citing United States v. Meregildo, 883 F. Supp. 2d 523, 526 (S.D.N.Y. 2012) (“When a social media user disseminates his postings and information to the public, they are not protected by the Fourth Amendment.”).

[5] 883 F. Supp. 2d at 526.