The Use of Social Media and a Public Employee’s Freedom of Speech

• First Amendment Freedom of Speech and Public Employees
• The Use of Social Media by Public Employees

The use of social media by a public employee to denigrate minority religious groups may potentially subject the employee to internal discipline by his employer.

Juan Hernandez is a sergeant on the Phoenix Police Department.  One of Sgt. Hernandez’s off-duty pursuits was to maintain a personal social media Facebook account on which he often would post news articles and “memes” created by others.  (A “meme,” by the way, is defined as either (1) “an idea, behavior, style, or usage that spreads from person to person within a culture,” or (2) “an amusing or interesting item—such as a captioned picture or video—or genre of items that is spread widely online especially through social media.”  I had to look it up.)  Although Sgt. Hernandez never specifically identified himself on Facebook as a Phoenix police officer, some of his posts showed him in uniform making his employment obvious to anyone who might care.  Among his posts were included pieces dealing with the Muslim religion.  In 2019, a national organization called the “Plain View Project” (“PVP”), which maintains a database of often racially or culturally motivated Facebook posts made by law enforcement officers from across the country, picked up on Sgt. Hernandez’s posts.  The PVP identified eleven of Sgt. Hernandez’s posts that could be interpreted as reflecting biases against racial or religious minorities, or that at least contained contents that might be offensive to members of such groups. When the PVP publicized its findings, it generated a firestorm of public criticism of the Phoenix Police Department and considerable negative media attention.  The Phoenix Police Department has a written policy governing its employee’s use of social media.  Among other things, the policy prohibits employees from engaging in speech on social media that could be “detrimental to the mission ....