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 ....