In September of
2024, the Ninth Circuit Court of Appeals ruled that a public employee’s private
text messages were not protected under the First Amendment. A former California
Chief of Police appealed after the district court dismissed her First Amendment retaliation and derivative
conspiracy claims. Prior to becoming the Police Chief, , she engaged in a
private text conversation in 2013 with a then-friend and coworker in which she
shared two images that she received from an undisclosed source. Along with the
images, she shared the message “Some rude racist just sent this!!” The images
contained a racist epithet and slur. That same day, she forwarded the images to
another coworker and then-friend. The messages were not disclosed nor made
readily discoverable by the general public. It was clear that the messages were
intended for a purely private audience in the context of private conversational
exchanges. Several years passed before one of the recipients of the images
reported the exchange in retaliation of disciplinary action taken against them
by the chief. The Chief was pressured to and did ultimately resign..
In
2022, she filed suit claiming, among other things, deprivation of the right to
free speech under the First Amendment and First Amendment conspiracy. The
district court dismissed her complaint for failure to state a claim of a First
Amendment violation, holding that Adam’s speech was not a matter of public
concern.
First Amendment Analysis
Public employees
do not surrender their First Amendment rights merely by virtue of their
position. The First Amendment prohibits government officials from disciplining
public employees for having engaged in protected speech. In analyzing whether a
public employee’s speech is protected under the First Amendment, courts employ
a balancing test established by the United States Supreme Court in Pickering
v. Board of Education (1986) 391 U.S. 563. Under Pickering, a
plaintiff claiming a violation of their First Amendment rights must establish
that: (1) she spoke on a matter of public concern, (2) she spoke as a private
citizen rather than a public employee, and (3) the relevant speech was a
substantial or motivating factor in the adverse employment action. If the
public employee meets this burden, the employer must then demonstrate that it
had an adequate justification for treating the employe differently than other
members of the general public and that it would have disciplined the employee
even absent the protected speech. In short, to show that one’s speech is
protected by the First Amendment, a public employee must prove that they spoke
as a private citizen on a matter of public concern. The public
employee must then prove that the public’s collective interest in the speech
outweighs the governmental interest in avoiding disruption to its operations
that could or would be caused by that speech.
In this case,
the Court framed the threshold question as whether the statements substantially
addressed a matter of public concern. If speech does not do so, there is no
actionable cause under the First Amendment. To determine whether a public
employee’s speech is a matter of public concern, the court considers the “content,
form, and context of a given statement as revealed by the whole record.” (Connick
v. Meyers (1983) 461 U.S. 138, 147-48.) Speech involves a matter of public
concern when it can be fairly considered to relate to any matter of political,
social, or other concern to the community, or when it is a subject of
legitimate news interest. (Lane v. Franks (2014) 573 U.S. 228, 241.) The
content of the communication must be of broad societal concern. If the speech
concerns only personal or private interest, an action based on a violation of
the employee’s First Amendment rights is not the appropriate method of
challenging agency discipline. Restricting speech on purely private matters
does not implicate constitutional concerns.
Speech regarding
matters of race, religion, or other such topics are a matter of public concern
when they involve the public’s interest in governmental conduct that affects
society as a whole. (Alpha Energy Savers, Inc. v. Hansen (9th Cir. 2004)
381 F.3d 917, 926-27.) Conversely, speech that complains of private,
out-of-work, offensive individual contact by unknown parties, as is in this
case, is not of public concern. Additionally, inappropriate or controversial
character of a statement is irrelevant to the Pickering analysis.
The Court
determined that the text messages were of private interest, not of public
concern. The text messages and distribution of the images expressed only her
opinion on being sent the messages, which is a purely private matter. The
messages did not discuss generally applicable policies and practices, nor did
she suggest that her receipt of the messages was connected to wrongful
governmental action. When addressing why she made the speech, the court concluded
she intended the messages to be entirely private, conversational in nature, and
only meant to convey a personal grievance about receiving offensive images. As
such, the district court’s dismissal was affirmed. The court acknowledged
dismissal may be unfair, but it cannot be challenged as a violation of her
freedom of speech.
Conversely, the
Civil Service Commission of Massachusetts determined that an off-duty Boston
Police Officer’s private tweets regarding the January 6th, 2021,
rally in Washington D.C. were protected and the disciplinary action taken
against the officer on the basis of the tweets was actionable under the First
Amendment. (Abasciano v. Boston Police Department (December 24, 2024)
Civ. Serv. Comm. D1-23-033.) The plaintiff in this case was discharged by the
Boston Police Department for tweets published from an anonymous twitter while
attending the rally. The tweets were sent while the officer was off-duty, from
a private account, and they did not identify the plaintiff or his employment
with the Boston Police Department.
The rules and
procedures of the Department permitted employees to express political opinions
and attend political conventions and rallies. Throughout a series of tweets,
the officer publicly commented on the rally, shared his opinions on various
political figures and authorities, and generally called for patriotism. Following
Pickering, the commission determined that because the tweets were sent
as a private citizen, there was nothing to indicate that the plaintiff was
acting in his official capacity as a police officer, and the tweets were
matters of public concern as they pertained to broad commentary on politics,
they were protected. As such the Department was then required to provide
justification to restrict the speech. This aspect of the Pickering balancing
test is comprised of two prongs: (1) the inflammatory nature of the speech, and
(2) whether the speech could reasonably be expected to interfere with
Department functions. Several officers testified affirming that it was unlikely
that the content and nature of the tweets would interfere with his ability to
perform his official duties. As such, the commission ruled in favor of the
plaintiff officer and deemed his discharge to be in violation of his First
Amendment rights.
In sum, public
employees must be conscious of speech made both in private and in public.
Private speech is not protected by the First Amendment but may nonetheless
provide the basis for administrative discipline. Alternatively, public speech
by a public employee is protected by the First Amendment only when it is clear
the speech is made by the officer in their personal, not official, capacity;
the speech regards a matter of broad public concern; and the employing agency
does not have a greater interest in preventing the speech for the sake of
administrative efficiency.
