City's Termination of Police Officer Over Facebook Posts Did Not Violate First Amendment

The Fifth Circuit recently held that the City of Greenville, Mississippi, did not violate the First Amendment when it terminated a police sergeant based on her Facebook comments criticizing her police chief. The sergeant, Susan Graziosi, posted the following statement using her home computer, while off duty, after her chief declined to allow police officers to use patrol cars to attend the funeral of an officer killed in the line of duty:

I just found out that Greenville Police Department did not send a representative to the funeral of Pearl Police Officer Mike Walter, who was killed in the line of duty on May 1, 2012. This is totally unacceptable. I don’t want to hear about the price of gas-officers would have gladly paid for and driven their own vehicles had we known the city was in such dire straights [sic] as to not to be able to afford a trip to Pearll, Ms. [sic], which, by the way, is where our police academy is located. The last I heard was the chief was telling the assistant chief about getting a group of officers to go to the funeral. Dear Mayor, can we please get a leader that understands that a department sends officers of [sic] the funeral of an officer killed in the line of duty? Thank you. Susan Graziosi

Graziosi posted similar comments after this initial post, including: “If you don’t want to lead, can you just get the hell out of the way.” Later, Graziosi also posted her initial statement to the Mayor’s public Facebook page. Graziosi made these posts days after she had returned from a suspension for violating multiple sections of the department’s policies while on duty. Upon learning about Graziosi’s Facebook posts, the police chief initiated an investigation, which determined that Graziosi’s posting of her comments on Facebook violated the police department’s policies, including policies against insubordination. As a result, the police department terminated her employment.

After the City Council upheld her termination, Graziosi filed suit against the City alleging that she was terminated in retaliation for exercising her First Amendment right to engage in free speech. The trial court granted the City’s motion for summary judgment, finding that Graziosi spoke as a public employee, and that she did not speak on a matter of public concern because the content of her speech did not address public safety or a breach of public trust, but an internal department decision. Further, even if Graziosi did speak as a citizen on a matter of public concern, the trial court concluded that her post caused actual disruption within the department and, thus, the City’s interest in maintaining discipline and good working relationships within the department outweighed her interest in speaking as a citizen on a matter of public concern.

On appeal, the Fifth Circuit affirmed the trial court’s summary judgment grant. While the Court disagreed with the trial court’s finding that Graziosi was speaking as a police officer when she posted her comments, it concurred with the trial court’s finding that her posted comments did not address a matter of public concern, but instead involved a dispute over an intra-departmental decision.

Further, the Fifth Circuit agreed with the trial court that, even if Graziosi was speaking as a private citizen on a matter of public concern, the City’s interests in preventing insubordination within the department outweighed Graziosi’s minimal interest in speaking on a matter of public concern. The Court noted that the City’s interest in preventing insubordination in the police department was adequate because the content of the posts indicated that Graziosi was likely to cause and engage in future disruption in the police department.

The Graziosi decision serves as a reminder to public employers that adverse employment decisions based on social media postings may result in a First Amendment claim, which necessitates a constitutional analysis. The decision also serves to highlight the different analysis a private employer might face in a similar situation where the more pertinent question might be whether the employee was engaging in protected concerted activity under the NLRA when she made Facebook posts critical of her supervisor.