CHRISTIAN FENICO; THOMAS YOUNG; THOMAS GACK; EDWARD MCCAMMITT; TANYA GRANDIZO; ANTHONY ANZIDEO; ANTHONY ACQUAVIVA; WILLIAM BOWDREN; JOSEPH PRZEPIORKA; KRISTINE AMATO; RAPHAEL MCGOUGH; FRANCIS SHERIDAN, Appellants v. CITY OF PHILADELPHIA
No. 22-1326
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
June 8, 2023
PRECEDENTIAL. On Appeal from the United States District Court for the Eastern District of Pennsylvania (District Court No.: 2-20-cv-03336). District Judge: Honorable Petrese B. Tucker. Argued December 14, 2022.
* Judge McKee assumed senior status on October 21, 2022.
LARRY L. CRAIN [ARGUED]
CRAIN LAW GROUP, PLLC
5214 Maryland Way, Suite 402
Brentwood, TN 37027
Counsel for Appellants
DIANA P. CORTES
MEGHAN BYRNES [ARGUED]
CITY OF PHILADELPHIA LAW DEPARTMENT
1515 Arch Street, 17th Floor
Philadelphia, PA 19102
Counsel for Appellee
OPINION OF THE COURT
The Constitutional guarantee of free expression is a pillar of our democracy, and yet, it can be a bitter medicine—particularly when prescribed in defense of social media‘s more antisocial viewpoints. In 2019, the City of Philadelphia took disciplinary action against twelve police officers for using Facebook to openly denigrate various minority groups and glorify the use of violence. The Appellant officers alleged that these actions constituted First Amendment retaliation, but the District Court dismissed their lawsuit for failure to state a claim, after concluding that their base and hateful speech was unprotected by the First Amendment.
This Court does not condone the Appellant officers’ use of social media to mock, disparage, and threaten the very communities that they are sworn to protect. While we do not opine on the merits of their suit, our rules of procedure dictate that the Appellant officers have stated a claim for First Amendment retaliation at this juncture. We must accordingly reverse the dismissal of the Appellant officers’ claims and remand for further proceedings consistent with this Opinion.
I. BACKGROUND
Appellants are twelve current and former Philadelphia Police Officers (the “Officers“) who were terminated, suspended, and/or disciplined after an online database aggregated and published highly offensive Facebook posts they and other officers nationwide had authored. A major online news organization subsequently wrote an expose about the posts, pushing them further into the public eye. After learning of the posts, the Philadelphia Police Department (“PPD“) launched an investigation and took action against the
The Officers now appeal the dismissal of their Amended Complaint for failure to state a claim under
We echo the District Court‘s assessment that the Officers’ social media posts are “offensive, racist, and violent.” J.A. at 30. We likewise validate the City‘s interest in protecting a perception that police exist to serve the entire community regardless of race, ethnicity, national origin, religion, sex, gender expression, sexual orientation, or political beliefs. Posts like the Officers’ have the capacity to confirm the community‘s worst fears about bias in policing, and we recognize that the effectiveness of public safety efforts in Philadelphia may well be at stake.
That said, the First Amendment requires a stronger factual tether than the District Court held when it dismissed the Officers’ retaliation action. There are material gaps in the undeveloped record concerning (1) when certain posts were authored and by whom; and (2) which posts were even the subject of PPD‘s disciplinary actions. These gaps preclude an adequately particularized analysis of the public concern raised.
A. The Officers’ Posts Come to Light
In 2019, the Plain View Project (“Plain View“), a nonprofit news organization, aggregated and published an online database of over 5,000 Facebook posts and comments made by current and former police officers around the country.1 Plain View stated that the posts reflected officers’ views on “race, religion, ethnicity and the acceptability of violent policing,” and had the capacity to “undermine public trust and confidence in our police.” Plain View database. Plain View attributed around 3,000 of those posts to Philadelphia police officers.
On June 1, 2019, internet media, news, and entertainment company Buzzfeed News wrote a longform article about Plain View which republished a selection of the 5,000 posts with commentary about their impact on the community. The article highlighted several of Appellant Fenico‘s posts. According to the Amended Complaint, PPD Commanders held a meeting on June 6, 2019 to discuss the article. During this meeting, the Officers allege that First Deputy Commissioner Myron Patterson acknowledged that the focus of the Buzzfeed article was a critique of “right wing
The Buzzfeed article led PPD to initiate an investigation into the underlying posts. Based on the results of that investigation, 72 PPD officers were placed on restricted duty or suspended. According to the Amended Complaint, at least five of the twelve Officers involved in this action were formally charged with violating one or both of the following provisions of the Department‘s Disciplinary Code:
”Conduct Unbecoming” — “Any incident, conduct, or course of conduct which indicates that an employee has little or no regard for his/her responsibility as a member of the Police Department.” Article I, Section 1-§ 021-10.
”Neglect of Duty” — “Failure to comply with any Police Commissioner‘s orders, directives, memorandums, or regulations; or any oral or written orders of superiors.” Article V, Section 5-§ 011-10.
Id. at 45.
Some Officers’ disciplinary charges also cited PPD‘s “Social Media and Networking” Policy, Directive 6.10, which prohibits the use of ethnic slurs, personal insults, profanity, material that is harassing, defamatory, fraudulent, or content that would otherwise not be acceptable in a City workplace, and puts officers on notice that “personal use of social media has the potential to impact the department as a whole, as well as individual members serving in their official capacity.” Id. at 90-95.
The Officers allege that their speech was protected by the First Amendment and as such, the punishment imposed on them—rooted in the above policies or not—violates the Constitution. They seek declaratory judgment, nominal damages, and compensatory damages in the amount of $2 million per Officer for economic harms, mental anguish, humiliation, embarrassment, and emotional injury.
1. The Officers
In this appeal, we must address the First Amendment value of each of the twelve Appellant Officers’ social media posts. A brief summary of each of the Officers and a selection of their social media posts is below. Because we are reviewing the grant of a motion to dismiss, we accept the Officers’ allegations as true.
2. Christian Fenico
Appellant Fenico joined PPD in 2003. At the time of the events in question, Fenico served in the S.W.A.T. Unit. On
The Plain View database reflected eight posts with content attributed to Fenico under the username “Chris Joseph,” posted between 2012 and 2015.3 J.A. at 12. All of these posts were appended to the Amended Complaint. In response to a 2015 shared post describing refugees rejecting a delivery of food because it bore the Red Cross logo, Fenico commented, “Good, let them starve to death. I hate every last one of them.” S.App. at 29. In a 2013 post, Fenico commented, “Should have shot him,” on an article detailing a theft in Missouri. Id. at 26.
3. Thomas Young
Appellant Young joined PPD in April 1990. At the time of the events in question, Young held the rank of Corporal. On June 5, 2019, Young was placed on restricted duty and told to surrender his weapon due to an IAB investigation. During a subsequent meeting with the IAB, Young was shown several of his Facebook posts; he confirmed that the posts were his and that no one else had access to his computer. On July 17, 2019,
The Plain View database reflected eighteen posts from 2013 to 2017 attributed to Young under the username “Tom Young,” all of which were appended to the Amended Complaint.4 J.A. at 13. Most are comments on others’ posts. In a post from 2015, Young commented on a shared YouTube link titled, “Migrant Workers are Thrown Over Motorway Barrier by Police.” S.App. at 254. Young replied, “They should gather them up and send them back to where they came from.” Id.
4. Thomas Gack
Appellant Gack joined PPD in 1993. On June 7, 2019, Gack was placed on restricted duty and was ordered to surrender his service weapon pending an investigation into his Facebook posts. On June 11, 2019, Gack reported to the IAB for an interview where he was shown 37 of his Facebook posts. Gack initialed each page to confirm that each post was authored by him. Gack was also instructed to disclose any other screennames or private social media accounts, or he would be cited for failure to cooperate with an internal investigation. On July 19, 2019, PPD terminated Gack for “conduct unbecoming” and “neglect of duty.”
5. Edward McCammitt
Appellant McCammitt joined PPD in 1986. At the time of the events in question, he served in the Traffic Division. On July 19, 2019, the IAB served McCammitt with a disciplinary action of a 30-day suspension with intent to terminate, on account of his Facebook posts. It is not clear if McCammitt was shown the posts deemed problematic during the course of these disciplinary proceedings. Subsequently, McCammitt was ordered to turn in his badge, identification, and equipment for “conduct unbecoming” and “neglect of duty.” On July 23, 2019, he requested early retirement to retain his medical coverage, but PPD ultimately deemed him “resigned.” J.A. at 57.
The Plain View database reflected 23 posts attributed to McCammitt from 2015 to 2017, all of which were appended to the Amended Complaint. In 2017, McCammitt shared a picture of an officer spraying a protester with mace with the caption, “PARTICIPATION TROPHIES . . . NOW IN LIQUID FORM!” S.App. at 68. In a 2017 post, he shared a
6. Tanya Grandizo
Appellant Grandizo joined PPD in 1995. At the time of the events in question, she held the rank of Corporal. In June 2019, Grandizo was placed on restricted duty pending an investigation into her private Facebook posts. It is unclear if Grandizo was shown her posts deemed problematic during the course of the investigation. In March 2020, Grandizo was suspended for thirty days in connection with her Facebook posts. At the time of the Amended Complaint, Grandizo was still a member of PPD.5
The Plain View database attributed nine Facebook posts from 2013 to 2016 made by the username “Tanya Grandizio,” to Grandizo,6 all of which were appended to the Amended Complaint. S.App. at 87-95. In 2015, Grandizo shared a news article with no additional commentary titled, “Obama: In the Muslim Immigrant Today, We See the Catholic Immigrant of a
7. Anthony Anzideo
Appellant Anzideo joined PPD in February of 2007. On June 12, 2019, he was called in by the Employee Assistance Program in response to his Facebook posts featured on Plain View. The following day, the IAB showed Anzideo his Facebook posts and asked him to initial and acknowledge each page as the author. The IAB subsequently served Anzideo with a series of “75-18” reports (a disciplinary report as a result of an investigation) and he was cited with “neglect of duty.” According to the Amended Complaint, “there were a total of four or five posts with which the department took issue out of the thirty-eight posts reviewed.” J.A. at 62. In total, Anzideo remained on restricted duty for approximately sixty days. At the time of the Amended Complaint, Anzideo was still a member of PPD.
The Plain View database reflected 38 posts attributed to Anzideo from 2010 to 2016, but only five are appended to the Amended Complaint, presumably reflecting those that Appellants allege were shown to Anzideo during his disciplinary proceedings. Among the five posts was a link Anzideo shared to a “USATODAY.COM” news article from 2015 reading “9 Dead in shooting at black church in Charleston, S.C.,” to which Anzideo added the caption, “This is horrible..Hope they track this POS down and take him out.” S.App. at 99. In 2016, in response to a news article he posted
8. Anthony Acquaviva
Appellant Acquaviva joined PPD in 1990. On or around June 5, 2019, Acquaviva was removed from normal duties, reassigned, and was ordered to surrender his service weapon on account of his Facebook posts highlighted by Plain View. Several weeks later, Acquaviva was informed that he had been placed on the “Giglio List“—which meant that he would be barred from testifying in court because of concerns about his credibility.7 Acquaviva maintains that he never received any charging or termination papers, and it is unclear if he was ever shown the posts that were the subject of PPD‘s actions against him. Nevertheless, the Amended Complaint discusses that Acquaviva never attended his IAB hearing, despite being told to do so. PPD ultimately told Acquaviva that he was being terminated, and he alleges that he was constructively discharged from PPD, despite his expressed desire to retire instead.
The Plain View database reflected seventeen posts attributed to Acquaviva from 2015 to 2016, sixteen of which were appended to the Amended Complaint. In 2015 Acquaviva shared a post on Facebook from a fellow Officer in
9. Kristine Amato
Appellant Amato joined PPD in 1990. On June 5, 2019, she was ordered to surrender her service weapon and assigned to desk duty. In June 2019, she was shown “twelve to fourteen” Facebook posts attributed to her on the Plain View database, which she initialed to acknowledge authorship. J.A. at 67-68. PPD served Amato with a “75-18” Disciplinary Action for violating its Social Media Policy. Amato spent a total of approximately 30 days on suspension without pay. At the time of the Amended Complaint, Amato was still an active member of PPD.
The Plain View database reflected twelve posts with commentary attributed to Amato under the username “Yo Stuff” from 2012 to 2017, all of which were appended to the Amended Complaint. S.App. at 116-28. Unlike most of the other Officers, all of the posts attributed to Amato were comments Amato wrote on others’ posts; it does not appear that she authored any of the original posts herself. Responding to a 2017 post by Appellant Przepiorka about an article titled
10. Joseph Przepiorka
Appellant Przepiorka joined PPD in 1989. At the time of the events in question, he held the rank of Sergeant. On June 4, 2019, Przepiorka‘s supervisor informed him that the was being reassigned and that he would need to surrender his service weapon as a result of his Facebook activity. Przepiorka faced charges for “conduct unbecoming” and “neglect of duty” for the Facebook posts attributed to him on Plain View, though it is not clear if he was ever shown the posts that were deemed problematic. Przepiorka was ordered to report to the IAB to sign his 30-day suspension with intent to dismiss. However, on July 25, 2019, he retired for insurance purposes.
The Plain View database reflected 93 posts attributed to Przepiorka from 2015 to 2017, all of which were appended to the Amended Complaint. One of Przepiorka‘s posts from 2017 depicted a skeleton draped in the American flag and touting an automatic weapon with the words, “DEATH TO ISLAM” at the top. S.App. at 130. In 2017, Przepiorka shared a picture of professional wrestler Steve Austin emblazoned with the confederate flag and the text, “Give Me A Hell Yeah FOR TRUMP.” Id. at 138. In another post, he shared a picture of a white cap embroidered with the words, “MAKE AMERICA NOT A BUNCH OF CUNTS OFFENDED BY
11. William Bowdren
Appellant Bowdren joined PPD in 1996. At the time of the events in question, Bowdren served on the Gun Violence Task Force as a Detective. On June 7, 2019, Bowdren‘s Commanding Officer notified him of a pending investigation into his Facebook activity, and collected his service weapon. Additionally, Bowdren was asked to sign IAB documents and was placed on strict desk duty. The Amended Complaint discusses that the allegations against Bowdren “mirrored those against the other Plaintiffs,” and that he was made to sign various “75-18” disciplinary reports, though it is unclear if he was shown his social media posts that were deemed problematic. J.A. at 75. On July 31, 2019, Bowdren was placed on the Giglio List. PPD subsequently removed Bowdren from the Gun Violence Task Force. At the time of the Amended Complaint, Bowdren was still a member of PPD.
The Plain View database reflected fourteen posts attributed to Bowdren from 2012 to 2017, all of which were appended to the Amended Complaint. Most of the posts were shared news articles with Bowdren‘s response appended as a comment or caption. As an example, Bowdren commented, “Vroom Vroom” on an article he shared in 2017 titled, “Tennessee Passes Bill Allowing People To Hit Protestors Blocking Roads.” S.App. at 232. In 2017, Bowdren shared an article from “6ABC.COM” titled “Mother and boyfriend both charged in teen‘s murder,” to which he added the caption, “These animals need to be tortured and mutilated in a public square.” Id. at 242.
Appellant McGough joined PPD in 2003. At the time of the events in question, he served in the role of Detective. In connection with his Facebook posts featured on Plain View, McGough was placed on the Giglio List, reprimanded, and faced up to a five-day suspension. One of McGough‘s “75-18” disciplinary reports stated that his posts were racist, sexist, and homophobic in nature, though it is unclear if he was shown the posts that were deemed problematic. On December 12, 2019, McGough received a letter of reprimand. At the time of the Amended Complaint, McGough was still a member of PPD.
The Plain View database reflected 24 posts attributed to McGough under the username “Ray McGough,” nine of which were appended to the Amended Complaint. S.App. at 258-66. Most of those nine posts appear to be from 2017, and are shared news articles. In 2017, McGough shared an article titled, “UPDATING: In Progress – Antifa Marching To Confront Patriots Decide To Take On Police,” on which McGough commented, “[a]nd we know who the liberal scum are rooting for.” Id. at 258. In another post, McGough commented, “You reap what you sow,” in response to an article on “BREITBART.COM,” with the title “Baltimore Residents Blaming Murder Increase on Lack of Police After BLM Protesters Demanded Pullback.” Id. at 259. Without any caption, McGough shared another article seemingly attributed to the Blue Lives Matter organization with the headline: “Police Use Officer Amy Caprio‘s Handcuffs to Arrest All Of Her Alleged Killers.” Id. at 265.
13. Francis T. Sheridan
The Plain View database reflected two posts with content attributed to Sheridan under the username “Frank Sheridan” from 2014 and 2017, both of which were appended to the Amended Complaint. S.App. at 268-69. Like Officer Amato, Sheridan does not appear to have created any of the posts in question; he only commented on them. In the 2014 comment, Sheridan responded to another‘s shared link bearing the text “CHILD RAPIST RAPED” and a graphic photo with the comment “Thank God for Prison Justice!” Id. at 268. In the 2017 comment, Sheridan responded to a news link captioned “A teenager arrested for raping a baby will avoid prison,” with the comment, “If this is a true story, these assholes need to be exterminated!” Id. at 269.
B. Procedural History
The Officers sued the City on July 8, 2020, and filed an Amended Complaint on October 7, 2020. The Officers alleged that the disciplinary actions taken against them violated the First Amendment,
II. ANALYSIS
A. Jurisdiction & Standard of Review
The District Court had jurisdiction under
We review a district court‘s grant of a motion to dismiss de novo. Morrow v. Balaski, 719 F.3d 160, 165 (3d Cir. 2013) (en banc). “Under
“The district court may not make findings of fact and, insofar as there is a factual dispute, the court may not resolve it.” Flora v. County of Luzerne, 776 F.3d 169, 175 (3d Cir. 2015) (vacating order granting
“enough facts to raise a reasonable expectation that discovery will reveal evidence of” each necessary element of the claims alleged in the complaint. Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly, 550 U.S. at 556). The primary question in deciding a motion to dismiss is not whether the plaintiff will ultimately prevail, but rather whether they are entitled to offer evidence to establish the facts alleged in the complaint. Maio v. Aetna, Inc., 221 F.3d 472, 482 (3d Cir. 2000).
B. First Amendment Retaliation
As an initial matter, “[s]peech by government employees receives less protection than speech by members of the public.” Amalgamated Transit Union Loc. 85 v. Port Auth. of Allegheny Cnty., 39 F.4th 95, 103 (3d Cir. 2022). However, “public employees do not surrender all of their First Amendment rights merely because of their employment status.” Munroe v. Cent. Bucks Sch. Dist., 805 F.3d 454, 465 (3d Cir. 2015), as amended (Oct. 25, 2019).
To plead a First Amendment retaliation claim, a government employee must allege “(1) that the activity in question is protected by the First Amendment, and (2) that the protected activity was a substantial factor in the alleged retaliatory action.” Hill v. Borough of Kutztown, 455 F.3d 225, 241 (3d Cir. 2006). To show that their speech is protected, the employee must establish first that: (1) in making it, they spoke as a private citizen, and (2) the statement involved a matter of public concern. Garcetti v. Ceballos, 547 U.S. 410, 418 (2006). If these two elements are satisfied, “the possibility of a First Amendment claim arises.” Id. The court must then determine, under the test elaborated in Pickering v. Board of Education of Township High School District 205, Will County, Illinois, if the employee‘s interest in speaking outweighs the government‘s interest in avoiding disruption to its operations. 391 U.S. 563, 568 (1968); Munroe, 805 F.3d at 466.
The inquiry into the protected status of speech is a question of law, not fact. Hill, 455 F.3d at 241. However, it is a question of law that nonetheless requires a robust factual basis, given that Pickering sets forth a uniquely “particularized” balancing test, not a simple burden-shifting threshold. Connick v. Myers, 461 U.S. 138, 149-50 (1983). Indeed, “the state‘s burden in justifying a particular discharge varies depending upon the nature of the employee‘s expression.” Id. at 150. As a result, the extent to which speech touches on matters of public concern cannot be answered with a simple “yes” or “no,” as the more substantially an employee‘s speech involves matters of public concern, the higher the state‘s burden will then be to justify taking action, and vice versa. See id. at 150-52 (rejecting approach which treated the question of public concern as a “threshold inquiry,” then shifted burden to government to demonstrate interference with its responsibilities); see also Locurto v. Giuliani, 447 F.3d 159, 174 (2d Cir. 2006) (“a negative answer to the public concern question [is] not meant to license wholesale Government disregard of employee speech rights, especially outside of the workplace“) (citing United States v. Nat‘l Treasury Emps. Union, 513 U.S. 454 (1995)). Rather, as this Court has recognized, the public concern inquiry “involves a sliding scale in which the amount of disruption a public employer has to tolerate is directly proportional to the importance of the disputed speech to the public.” Munroe, 805 F.3d at 472 (internal quotation omitted).
The City‘s arguments not only improperly propose a threshold finding of nominal public concern as to all 250 posts without individualized analysis, but advocate that such a finding is not even necessary in order to perform Pickering balancing. This conflicts with the “sliding scale” approach elucidated in Munroe and its antecedents, which requires a more nuanced understanding of both the precise public concern posed and the contours of the government‘s interest before balancing the two. 805 F.3d at 472. Because the record is insufficient here to inform proper Pickering balancing, we conclude that dismissal is not appropriate at this stage.
This is not “one of those rare case[s]” where the pleadings suffice to answer unavoidable questions about the public concerns raised by the employee‘s speech and the likelihood of disruption that it posed. Craig v. Rich Twp. High School Dist. 227, 736 F.3d 1110, 1121 (7th Cir. 2013) (internal
Rather, this suit involves twelve individual speakers who uttered 250 discrete statements covering a broad variety of controversial topics over a period of six or more years. The public concerns raised and potential disruption posed by these statements are simply too complex to adequately resolve Pickering balancing in the City‘s favor without more tailored factual development and analysis. While the Officers undoubtedly face a steep uphill battle in ultimately proving their case, the allegations in their Amended Complaint entitle them an attempt to develop it in discovery. For the reasons that follow, we will reverse the dismissal of the Officers’ First Amendment retaliation claim and remand for further development of the factual record.
- Matters of Public Concern
The District Court‘s “public concern” analysis suffered from both factual oversights and legal errors, both of which must be remedied on remand. Although ultimately a question
Speech relates to a matter of public concern when “it can be fairly considered as relating to any matter of political, social or other concern to the community,” as opposed to a purely private intraoffice grievance. Munroe, 805 F.3d at 467 (quoting Connick, 461 U.S. at 146) (internal quotations omitted). The 250 posts flagged by Plain View, which the Officers appended in part to their Amended Complaint, appear to clear this first hurdle: none of the posts relates solely or even primarily to private grievances in which the public might have little interest. Even setting aside the City‘s concession to this effect, the Officers have adequately pled at this stage of the proceedings a claim that their speech was of some public concern.
However, that is not to say that this case was ripe for Pickering balancing. As an initial matter, the record is fatally inconclusive as to which of the Officers’ posts were the subject of PPD‘s disciplinary proceedings against each Officer. The District Court sought to avoid this deficiency by concluding that the “prejudiced and violent” and “racially charged” nature
However, there were gaps in the record preventing the District Court from arriving at this blanket conclusion. For at least two posts in the record, the Officer to which the posts were attributed appears not to have created, shared, or commented on them,9 and at least one post appearing in the Plain View database and referenced in the Amended Complaint was excluded from the record entirely.10 We do not purport to establish a specific minimum degree of particularity at which a court must evaluate the public concern raised by
First, not all speech of some public concern has equal value under the First Amendment. Far from it. Rather, under the “sliding scale” approach to Pickering balancing, the degree of public concern raised dictates the government‘s burden to show likely disruption. See Munroe, 805 F.3d at 472. Courts are instructed not to treat “public concern” as a threshold, but as a matter of degree. See Connick, 461 U.S. at 151. Yet, the City advocates on appeal that in accepting the City‘s concession as to public concern, we should assign a uniform nominal First Amendment value to all 250 posts—all without knowing which posts are even relevant to the inquiry. Pickering requires more from courts that apply it. After discovery, it could well be the case that the suite of posts that informed a particular Officer‘s discipline holds so little First Amendment value that the government‘s burden to show likely disruption is indeed minimal. However, in this instance, the District Court on remand cannot proceed to the second step of Pickering balancing without knowing what that burden will be
Second, the District Court‘s aggregate legal assessment of the marginal public concern the posts raise skirts one of the more uncomfortable but important features of First Amendment doctrine. Namely, the “inappropriate or controversial nature” of the speech is not relevant to whether it touches on matters of public concern—it is only a factor in evaluating its disruptiveness during Pickering balancing. Munroe, 805 F.3d at 470 (“humor, satire, and even ‘personal invective’ could be used in order to make or embellish a point about a matter of political, social or other concern to the community“); Hernandez v. City of Phoenix, 43 F.4th 966, 978-79 (9th Cir. 2022) (“Speech that expresses hostility toward racial or religious minorities may be of particularly low First Amendment value at the next step of the Pickering balancing test . . . but its distasteful character alone does not strip it of all First Amendment protection.“).
To provide a concrete example, the Supreme Court in Snyder v. Phelps, 562 U.S. 443, 454 (2011) upheld a broad range of highly offensive protest signage criticizing specific religions (“Pope in Hell,” “Priests Rape Boys“), celebrating violence against a particular group (“Thank God for IEDs,” “Thank God for Dead Soldiers“), and condemning the LGBTQ community (“God Hates Fags,” “Fags Doom Nations“). Although far from “refined social or political
Despite assigning the public concern raised by all 250 of the Officers’ posts a dispositively negligible value, the District Court itself even observed distinctions between certain Officers’ posts, undermining its one-size-fits-all approach. It noted that “[o]f all the Plaintiffs, McGough‘s posts were ones that could be deemed to more closely concern matters of public interest,” covering topics like “politics, supporting police, an increase in murder rate on decreased police presence, and the death sentence of a convicted rapist[] in Ohio.” J.A. at 20. The District Court was likewise “not convinced that all of the [Officers‘] posts involved matters of public concern,” underscoring several posts by Appellants Gack, McCammitt, Acquaviva, Przepiorka, and Bowdren that it found did not address public matters at all. Id. at 26.
At the very least, the District Court on remand must assess the degree of public concern raised by those posts that informed each Officer‘s disciplinary proceedings on an officer-by-officer basis, if not a post-by-post basis. It must also do so without considering the posts’ vituperative tone so much as their underlying content. Because these are determinations that the District Court ultimately could not make without further record development, we must reverse its premature dismissal of the action.
- Likely Disruption & Pickering Balancing
Beyond our aforementioned inability to adequately evaluate the public concern raised by the Officers’ posts, the underlying record also lacks sufficient support for the
Notably, an employer need not show that the speech in question caused actual disruption to its operations in order to satisfy Pickering—a reasonable likelihood of such disruption will suffice. Connick, 461 U.S. at 152 (holding that an employer need not “allow events to unfold to the extent that the disruption of the office and the destruction of working relationships is manifest before taking action“). In fact, the Supreme Court has “given substantial weight to government employers’ reasonable predictions of disruption, . . . even when the speech involved is on a matter of public concern.” Waters, 511 U.S. at 673.
However, an employer must still establish likely disruption through record support, and courts have long required more than “unadorned speculation as to the impact of speech.” Hall v. Ford, 856 F.2d 255, 261 (D.C. Cir. 1988) (citing Rankin, 483 U.S. at 388-89); see also Watters, 55 F.3d at 898 (citing lack of evidence to support employer‘s assertion that destruction of particular relationships would disrupt office
The District Court dispositively credited the City‘s interest, as stated in their motion to dismiss, in “(1) maintaining and preserving the public‘s trust and promoting a diverse workforce; (2) efficient prosecution; and (3) maintaining orderly internal operations and avoiding potential disruptiveness.” J.A. at 27. In support of the likelihood that the Officers’ social media would disrupt these interests, the City cited “increased national and local scrutiny and outcry against excessive force, police killings of unarmed Black men, and . . . call[s] to ‘defund’ the police.” Id.
On appeal, the City argues that there are no further facts that the Officers could possibly show here to counter the City‘s threshold assertion of likely disruption, and as such, further record development would be futile. However, this Court‘s recent decision in Amalgamated Transit Union Local 85 v. Port Authority of Allegheny County, where we evaluated a
While distinct in a few key ways, Amalgamated Transit evidences that it is not impossible for an employee to show that their controversial speech is unlikely to cause disruption. There, public employees brought a First Amendment challenge to a transit authority‘s decision to discipline them for wearing face masks bearing political slogans such as “Black Lives Matter” or “Trump 2020.” Id. at 101. As to the Port Authority‘s assertions of likely disruption posed by the face masks, “[t]he record show[ed] a lone employee complaint, three race-related incidents among Port Authority employees within the past fifteen years, wholly unrelated to and predating the mask rules, and electronic messages among employees expressing differing opinions about the Black Lives Matter movement.” Id. at 105. It also revealed a lack of a temporal connection supporting the Port Authority‘s claims of potential disruption, given the transit authority‘s long-standing practice of allowing political buttons and hats in violation of its policies without any evidence of past disruption. Id. We accordingly concluded that the Port Authority could “demonstrate an only minimal risk that the Employees’ speech would cause workplace disruption.” Id. at 104-05.
Evaluating the City‘s motion to dismiss for failure to state a claim, we must accept as true allegations in the Officers’ Amended Complaint that their “private speech in the form of comments on social media did not cause any disruption within [PPD]; nor did it negatively impact the ability of the City to maintain discipline and relationships in the workplace.” J.A.
That said, the Supreme Court has deferred heavily to employers’ reasonable interpretations of employee speech and predictions of disruption especially where, as here, the employer has performed an internal investigation into the matter. Waters, 511 U.S. at 676 (looking to employer‘s reasonable understanding of speech in question rather than a jury‘s fact-determination, even where employer‘s understanding is inaccurate). And our sister Circuits have recognized that this is especially true for police departments, which face unique internal and external dynamics. Cochran v. City of Los Angeles, 222 F.3d 1195, 1201 (9th Cir. 2000) (affording considerable deference to police department as employer, as “[d]iscipline and esprit de corps are vital to its functioning“); Locurto, 447 F.3d at 179, 183 (rejecting heckler‘s veto concerns and finding disruption likely where police officers expressed bias against those they were hired to
However, at this stage in the proceedings, no concrete support for the City‘s actions has been properly put forth, leaving an open factual dispute as to the likelihood of disruption posed by the Officers’ posts.15 The District Court erred in resolving this dispute in the City‘s favor at the motion to dismiss stage. Flora v. County of Luzerne, 776 F.3d 169, 175 (3d Cir. 2015).16
III. CONCLUSION
We accordingly reverse the District Court‘s dismissal of the Officers’ First Amendment retaliation claims and remand for further record development.