Back in November 2012, just after President Obama’s reelection, plaintiff Rex Duke posted the phrase “It’s time for the second revolution”, along with a picture of the Confederate flag, to his Facebook profile page. This isn’t too big of a deal in and of itself – there’s no shortage of anti-Obama, or anti-anyone-in-authority, sentiment on social media. Duke, however, was the Deputy Chief of Police of the Clayton State University (Georgia) Police Department, and so his posting of this particular status update led to trouble. Last week’s opinion can explain the context more fully:
Plaintiff intended only those with direct access to his page, such as close friends and family, to view the post. He was not on duty at the time, and neither the post nor Plaintiff’s Facebook profile referenced his employment at the CSU Police Department or his job as a police officer. He expressed no grievances related to the Department’s policies or his colleagues; instead he claims that “the intention behind the post was to express his general dissatisfaction with Washington politicians.” At the time, the Department had no social media policy that would have prevented the post.
Plaintiff took down the post within an hour, but during that period someone provided an image of the post to Atlanta television station WSB. A reporter contacted Plaintiff and CSU officials, and the station subsequently ran an evening news story discussing both the Facebook post and Plaintiff’s position as Deputy Chief the CSU Police Department. The Department received anonymous complaints against Plaintiff, prompting CSU officials to commence an official investigation.
Following the investigation, Plaintiff was reassigned, “to the less desirable morning shift, which is typically assigned to less experienced officers”, and so he sued, claiming that his demotion – and subsequent $15,000 pay cut – was a First Amendment violation. He claimed that he was reassigned ”to punish [him] for privately advocating for his personal political beliefs, and [that defendants] sought to restrain his ability to privately advocate for those personal beliefs.”
The court begins by trying to establish whether Plaintiff’s “speech was constitutionally protected and that the speech was a substantial or motivating factor in Defendant’s decision to demote him”, and that leads to the Pickering test:
the Court must find that (1) Plaintiff’s speech involved a matter of public concern; (2) Plaintiff’s interest in speaking outweighed the government’s legitimate interest in efficient public service; and (3) the speech played a substantial part in the government’s challenged employment decision. If the employee can make the above showing, the burden shifts to the government to show that (4) it would have made the same employment decision even in the absence of the protected speech.
For the first element, it is clear that Plaintiff was speaking in his capacity as a private citizen, and not as a representative of his employer, and the court holds that his “speech was thus a matter of public concern because it expressed disapproval of elected officials, certainly a topic “upon which ‘free and open debate is vital to informed decision-making by the electorate.’”" So the first Pickering factor worked out in Plaintiff’s favor, but the second would not. Firstly, it could be problematic internally for the Deputy Chief to express such strong opinions on divisive matters:
[W]hile the Court acknowledges that Plaintiff intended to express his disapproval of Washington politicians, on its face his speech could convey a drastically different message with different implications. Many of these messages are controversial, divisive, and prejudicial to say the least… Given Plaintiff’s supervisory responsibilities, such speech could undermine “loyalty, discipline, [and] good working relationships among the [Department's] employees” if left unaddressed.
The court also observes that, thanks to Plaintiff’s post making it onto the evening news, “the public attention the speech received also implicated the Department’s reputation and the public’s trust.” Here’s the key passage about how Plaintiff’s status update could undermine the police department’s reputation and standing:
But the politically charged context also heightens the potential for Plaintiff’s particular speech to damage the Department’s interests. Appearing to advocate revolution during a presidential election, and to associate that idea with a Confederate flag, Plaintiff likely sent a partisan, if not prejudicial, message to many in the CSU Police Department and the community it serves.
Ultimately, it’s held that the department’s interest in “providing efficient public service” outweighs Plaintiff’s speech rights, and so his demotion is upheld.