Does the 1st Amendment Protect FB Post AOC "Needs a Round”?

Law enforcement officers are in the news more and more for posting disturbing social media messages.

A group of 62 current Customs and Border Patrol officers are under investigation for violent, racist, and sexually explicit posts, many relating to their law enforcement mission.

In Louisiana, police officer Charles Rispoli said in a Facebook post last Thursday that Rep. Ocasio-Cortez “needs a round — and I don’t mean the kind she used to serve,” a reference to her past work as a bartender. He was fired.

These officers have First Amendment rights. The question is whether the First Amendment protects them from discipline.

They will argue that their posts occurred off-duty; did not express official policy; did not reference specific cases they are working on; and expressed political opinion or satire.

The law enforcement agencies will argue that officers give up some speech rights by working in this field; professional conduct standards require that private actions do not bring disrepute on the agency; and their posts undermine the agency’s mission by eroding public trust in the fair administration of the law.

Now you be the judge.

First, let me give you the tests that courts will use in these cases:

First, courts will balance employee speech rights against employer interests in prohibiting certain expressions.

Picture a seesaw: Employer interests are on one side of the teeter-totter, and employee interests on the other.

Now turn to the employee side. There are three areas to “score.”

First, is the speech private or public in character? If, for example, this is a gripe that the chief is incompetent, this is an employee grievance. Thus, it is private speech. It gets zero points.

If it is public—for example, flying the American flag for police, with a blue stripe— it’s public speech. In other words, it is a form of political expression. Score one point there.

Now look at the context. Was it in the town square, for example, as a demonstration? That’s public, i.e., a political view. Score another point.

If it’s private—say, a tattoo of a swastika (yes, there are police cases with this), that is private. No points there because the speech is not public in character.

Last, look at context: This usually refers to a medium for expression. A flag is usually a political statement. A KKK sticker on a lunchbox, or a bumper sticker on a pick-up (yes, there are cases), are private contexts.

Add up the score: If the employee gets three points, his or her speech will outweigh the employer’s interest.

If the employee scores only one or zero points, the officer will lose.

Cases where the employee scores two points are cliffhangers.

Courts often view Facebook as private speech. You might think that helps the employee—it’s off-duty speech! But private speech, by definition, does not convey the political expression that the First Amendment covers.

Feel free to share your scoring in these cases with me at mhl@illinois.edu.