Justice Oliver Wendell Holmes, Jr., once wrote that a man has “a constitutional right to talk politics, but he has no constitutional right to be a policeman.”[1] The Supreme Court later changed course, holding that the government “may not condition public employment on an employee’s exercise of his or her First Amendment rights.”[2] More recently, amidst high-profile cases of police brutality[3] and a growing distrust of law enforcement,[4] police departments face increasing scrutiny from the public and have an interest in protecting their public image. These departments must manage their relationship to the communities they police using tools that do not violate the First Amendment rights of their officers.
In Fenico v. City of Philadelphia,[5] the Third Circuit warned that government employers need to carefully identify the speech at issue when taking adverse action against employees in response to social media activity.[6] Calling the First Amendment a “bitter medicine,”[7] the court reversed the dismissal of a First Amendment retaliation claim brought by police officers who were disciplined after their public Facebook posts and comments led to a widespread scandal.[8] The district court had held that the plaintiffs collectively “fail[ed] to show that their right to free speech outweigh[ed] the government[] interest in regulating that speech.”[9] On remand, the district court again held for the government, but it did so at the summary judgment stage, after it undertook a fact-based analysis of the evidence of each officer’s statements.[10]
The Fenico decision highlights a broader dilemma concerning social media use by government employees. Social media users sometimes speak informally and candidly even when their profiles are public, and they do not always anticipate the potential reach of their statements, which are often preserved online.[11]
Government employees can and do use social media in ways that do not impact their employers, but this Note focuses on the more extreme examples that have resulted in significant public outcry. While government employers need bright-line employment policies, courts will scrutinize the decision to discipline an employee for speech on an individualized basis. Nowhere is this tension more salient than in the realm of policing, where inflammatory comments by individual officers can sow doubt in their communities about whether entire police forces will act with integrity when making life-or-death decisions.
The standard test for government employee speech, from Pickering v. Board of Education,[12] balances the speaker’s interest “in commenting upon matters of public concern” against the “interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.”[13] Pickering predates social media, so it did not contemplate one of the most consequential forms of employee speech today.
This Note argues that Pickering leaves police departments in uncertain territory regarding speech on social media. Speech by a police officer about police misconduct in particular is not easily divorced from the speaker’s employer, and neither is speech disparaging populations that interact with the police. Section II.A argues that in the context of police scandals, the two prongs of Pickering often directly correlate, making the balancing test difficult to apply. Section II.B compares the Fenico court’s call for an “officer-by-officer” or “post-by-post” review of social media speech and argues that an officer-by-officer approach results in richer analysis of the speech’s content, form, and context. Lastly, Section II.C explores the approaches available to plan for and avoid scandals like the one underpinning Fenico and the potential consequences of each approach.
