Freedom of Speech and Social Media – The First Amendment for Public Employees

By Zachery A. Lopes

About the author: Zachery A. Lopes is a senior associate with the Rains Lucia Stern St. Phalle & Silver, PC (“RLS”) Collective Bargaining and Litigation Practice Groups. He also represents clients in legal defense matters and officer-involved critical incidents.

On January 12, 2021, the Ninth Circuit Court of Appeals issued a published decision which reaffirms the rules governing the scope of the right of public employees to engage in free speech. Because the speech of public employees has increasingly attracted attention from the public (and therefore from employers), all peace officers should know the basics of this important and dynamic area of the law.

The Court’s decision, Moser v. Las Vegas Metropolitan Police Department, et al. (9th Cir. 2021) No. 19-16511, is particularly instructive and relevant to today’s world, as it concerns public employee free speech rights in the context of social media. In addition to summarizing the Moser decision, including the law relied upon by that court, we have also included some practical guidance on how peace officers should approach their public speech activity in the social media age.

The Moser Decision and the State of the Law. In 2015, the Las Vegas Metropolitan Police arrested a suspect who had shot a police officer. Moser was a member of the Department’s SWAT team, but was not involved in the incident. In a post to his personal Facebook account regarding news of the suspect’s capture, Moser commented: “It’s a shame [the suspect] didn’t have a few holes in him…”

During the ensuing internal affairs investigation, which had been prompted by an anonymous tip, Moser claimed the intent of his post was to express his frustration that the fellow officer who had been harmed “didn’t have a chance to defend himself.” Not convinced, the Department found that Moser’s comment demonstrated that he had become “a little callous to killing,” and that his conduct violated the Department’s social media policy. The Department punished Moser by reassigning him from his SWAT position to patrol, resulting in a loss of specialty pay.

Moser sued in federal court, alleging that the Department’s punitive action violated his First Amendment right to freedom of speech. The Department ....

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