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Monday, November 11, 2013

Police Officer's Facebook Posts Not Protected Speech

In an unpublished opinion, the 11th Circuit Court of Appeals recently addressed a police officer's lawsuit against the City of Atlanta alleging that the chief failed to promote the officer in retaliation for a comment she posted on Facebook criticizing another officer.  Gresham v. City of Atlanta (11th Cir., October 17, 2013). 
The officer had posted a comment on her personal Facebook page criticizing a fellow officer for interfering in an unethical manner with plaintiff's investigation of a suspect for alleged fraud and financial identity theft.  Although the officer's Facebook page's privacy settings allowed only "friends" to view posts, her comments found their way to the City's police department's office of professional standards.  Plaintiff was investigated for an alleged violation of the department's work rule requiring that any criticism of a fellow officer be directed through official department channels, and not be used to the "disadvantage of the reputation or operation of the Department or any employees."  Plaintiff argued that the reason she was not promoted when eligible was in retaliation for her comments, which were being investigated at the time of departmental promotions.  The City argued that she was not promoted because department policy prohibited any promotions during pending disciplinary investigations.
The district court ruled in favor of the City, and dismissed the officer's Section 1983, First Amendment lawsuit.  The 11th Circuit agreed, applying the four-part Pickering test for employee speech requiring the court to determine whether (1) plaintiff's speech involved a matter of public concern; (2) plaintiff's interest in speaking outweighed the government's legitimate interest in efficient government service; (3) the speech played a substantial part in the government's challenged employment decision.  If plaintiff establishes the first 3 prongs, then she will prevail unless defendants can prove that (4) they would have made the same employment decision even in the absence of protected speech. 
Here, the court determined that the government's interest in avoiding disruption outweighed plaintiff's interest in speaking on this matter.  Furthermore, plaintiff violated a clear departmental rule in commenting on a fellow officer outside of official department channels.  Finally, the court determined that plaintiff's speech interest was not a strong one, and merely reflected "venting her frustration with her superiors."  Thus, the appellate court agreed with the district court's decision to dismiss plaintiff's claims against the City. 

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