There’s No Such Thing as a Free Lunch, but What About Free Speech for Officers?

by | January 27, 2021

Moser v. Las Vegas Metropolitan Police Department, 2021 WL 98249 (9th Cir. 2021)

Social media is a wonderful and terrible tool. Suspects in the riot at the U.S. Capitol have largely been self-identifying and self-incriminating through extensive posting of statements, videos and images online through social media. Police officers often find themselves in hot water when a member of the public or department administrators take issue with officers’ social media postings. A recent case illustrates the legal test for assessing the department’s ability to discipline an officer on the basis of personal social media posts.

In December 2015, Teag Fox ambushed and shot an officer who was responding to a domestic dispute. Not long after, Fox was captured by officers. Moser, an officer and SWAT team member, learned about Fox’s capture when Moser was at home and off-duty. Moser posted a Facebook comment saying, “Thanks to a Former Action Guy (FAG) and his team we caught that a**hole…It’s a shame he didn’t have a few holes in him.”

Once the department learned of the Facebook comment, Moser became the focus of an internal affairs investigation. Moser acknowledged to investigators that his comment was “completely inappropriate” and was motivated by frustration that Fox had “basically ambushed one of our officers” and that “the officer didn’t have a chance to defend himself.” Moser had removed the comment before the interview.

Department administrators removed Moser from SWAT, claiming his Facebook comment showed he had become “a little callous to killing.” Moser’s supervisors testified that snipers “are held to a higher standard” because they toil in difficult and stressful situations. Moser filed an unsuccessful grievance and subsequently sued. The trial court granted summary judgment to the department and Moser appealed.

Courts apply an analysis known as the Pickering test to determine whether a government employer infringed on an officer’s First Amendment free expression rights. The court first considers whether the officer spoke about a matter of public concern, that is, a matter of great societal significance or importance. If the officer was disciplined for speech that is a private complaint, then the department prevails. If the discipline followed a comment on a matter of public concern, then the court must balance the department’s interest in an efficient workplace against the officer’s right to free expression.

In challenging the department action, Moser bore the initial burden to show that: First, he spoke on a matter of public concern; second, he spoke as a private citizen rather than a public employee; and third, his comment was a substantial or motivating factor in the discipline imposed on him. Moser and the department both conceded that his comment addressed a matter of public concern. They also agreed Moser spoke as a private citizen. Finally, both parties agreed Moser lost his SWAT team position as a direct result of his Facebook comment.

Thus, Moser met his initial burden to show a prima facie case. The burden then shifted to the department to show that their legitimate, administrative interests in an efficient, disruption-free workplace outweighed Moser’s First Amendment rights.

No matter the outcome, the decision reminds law enforcement that officers’ expressions of free speech aren’t altogether that free.

The court of appeals held the trial court improperly granted summary judgment to the department. The parties did not agree on the meaning of Moser’s comment. The department asserted that Moser’s comment advocated unlawful use of deadly force. Moser countered that it did not advocate unlawful violence, but rather expressed extreme frustration for the dangers experienced by officers, even if stated in a “clearly inappropriate” way. The appellate court noted that, “while Moser’s comment remains inflammatory even under his interpretation,” the Supreme Court has established that incendiary and passionate speech is still protected if the underlying speech is a matter of public concern.

The court also held there was a factual dispute over whether the department produced any evidence of a claimed disruption of police operations because of Moser’s comment. According to the court, the trial record did not support the department’s claim that Moser’s Facebook comment would have caused disruption: “The Supreme Court has recognized several factors in evaluating the impact of an employee’s speech on the government agency’s operation: ‘whether the statement impairs discipline by superiors or harmony among co-workers, has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, or impedes the performance of the speaker’s duties or interferes with the regular operation of the enterprise’” (Rankin v. McPherson, 483 U.S. 378 (1987)).

The court of appeals did not conclude that Moser’s comment didn’t disrupt the police workplace; rather, summary judgment was not appropriate because the department had not shown that its interests in workplace efficiency outweighed Moser’s First Amendment interests. The case may yet be decided in a trial. No matter the outcome, the decision reminds law enforcement that officers’ expressions of free speech aren’t altogether that free.

This blog was featured in our Xiphos newsletter, a monthly legal-focused law enforcement newsletter authored by Ken Wallentine. Subscriptions are free for public safety officers, educators and public attorneys.

KEN WALLENTINE is the Chief of the West Jordan (Utah) Police Department and former Chief of Law Enforcement for the Utah Attorney General. He has served over three decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.

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