You know a court’s opinion will be anything but run-of-the-mill when it begins: “Social media has allowed Americans to connect with friends in far-flung places and to share their opinions on topics both mundane and momentous. But social media can also tempt people to impulsively make inflammatory comments that they later regret. And even worse for them, employers often react by firing or punishing them for their ill-advised remarks.
“Charles Moser is one of those people. A Las Vegas Metro SWAT sniper, Moser commented on Facebook that it was a shame that a suspect who had shot a police officer did not have any ‘holes’ in him. After the police department dismissed him from the SWAT team, Moser sued, alleging violation of his First Amendment right. He contended that his comment suggested only that the police officer should have fired defensive shots. The district court, however, construed Moser’s statement as advocating unlawful violence, and ruled that the government’s interest in employee discipline outweighs Moser’s First Amendment right under the Pickering balancing test for speech by government employees.”
In a lengthy opinion, the federal Ninth Circuit Court of Appeals reinstated Moser’s lawsuit. The Court began by holding that Moser’s speech was a matter of public concern, something Metro did not dispute. The Court held that “even though the government generally cannot consider the content of the speech under the First Amendment, courts have carved a narrow exception for speech by government employees. Courts may consider the content of that speech to determine how much weight to give the government employee’s First Amendment interests. Courts have thus implicitly applied a sliding scale in which the state’s burden in justifying a particular discharge or adverse employment action varies depending upon the nature of the employee’s expression.
“At the apex of the First Amendment rests speech addressing problems at the government agency where the employee works. On the other hand, at least one court has suggested that racially charged comments that have no connection to the government employee’s workplace arguably receive less First Amendment protection.
“Here, the parties do not agree on the objective meaning of Moser’s statement. Metro believes that Moser’s comment advocated unlawful use of deadly force. Moser wished that the officers who captured the suspect would have shot him in retaliation for his earlier shooting of a police officer.
“Moser, however, offered a different take on his statement. At his interview with internal affairs investigators, he said that he was implying that the police officer who had been ambushed by the suspect – not the police officer who ultimately arrested the suspect – should have fired defensive shots. His statement then takes on a different meaning: He did not advocate unlawful violence, but rather expressed frustration – in an admittedly hyperbolic and inappropriate manner – at the perils of police officers being struck down in the line of duty. Put another way, Moser’s comment touches on an important public policy issue that falls within his personal experience.
“While Moser’s comment remains inflammatory even under his interpretation, the Supreme Court has held that the ‘inappropriate or controversial character of a statement is irrelevant to the question whether it deals with a matter of public concern.’ Moser’s statement – when viewed in the light most favorable to him under the summary judgment standard – could be objectively interpreted as a provocative political statement against police officers being shot in the line of duty.
“In short, a factual dispute exists over the objective meaning of Moser’s statement. Under Metro’s reading, Moser advocated unlawful violence against suspects, which would not be in the core First Amendment zone (as the district court found). But under Moser’s interpretation, his statement falls within the core First Amendment zone because it highlights the perils faced by police officers and the government’s failure to protect them. The district court, however, did not resolve this factual dispute over the objective meaning of Moser’s statement and instead adopted Metro’s reading of it. That was error.
“The record here does not support the government’s contention that Moser’s Facebook comment would have caused disruption in the workplace. Typically, courts credit the government’s claim where the challenged speech is widely known or reported by the press. Here, there was no media coverage of Moser’s comment. In fact, the record shows no evidence that anyone other than the anonymous tipster even saw Moser’s Facebook comment. Nor would most people have even known that Moser served as a SWAT sniper because nothing in his Facebook profile confirmed his employment. And importantly, the chance that the public would have seen the Facebook comment remained low because Moser deleted that December 2015 comment by February 2016.
“Metro also has provided no evidence to support its claim that Moser’s comment will expose Metro to future legal liability. Metro speculates that if Moser shoots someone in the future, the shooting will lead to a lawsuit, that Moser’s deleted Facebook comment would be discovered, that the trial judge would admit that Facebook comment as evidence, and that the jury would rely on the Facebook comment to find Metro liable. But Metro has cited no case in which such a long chain of speculative inferences tipped the balancing test in the government’s favor.”
The Court’s opinion ended the same way it started, with a philosophical musing: “We have entrusted law enforcement with the solemn duty of using lawful force if necessary, and police officers thus must behave beyond reproach. We are also mindful that our society is in a self-reflective moment about excessive force and abuse of power by those who have taken an oath to protect all citizens equally and uphold the Constitution. But we also live in a time when a careless comment can ruin reputations and crater careers that have been built over a lifetime because of the demand for swift justice, especially on social media. In this case, we hold that the district court did not adequately address the objective meaning of Moser’s Facebook comment. And because of the disputed facts here, the district court erred in granting summary judgment for Metro.”
Moser v. Las Vegas Metro. Police Dept., 2021 WL 98249 (9th Cir. 2021).
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