Third Circuit Says First Amendment Protects Cops Who Want To Be Racist Assholes Online

The First Amendment protects speech, even the horrible stuff. It can't protect the speaker from being criticized for being abhorrent, despite what many abhorrent people believe. It can, however, in certain cases, protect the speaker from being punished for this speech.

It's not blanket coverage. The person engaging in the speech generally has to be punished by a government entity for this protection to kick in. A private company can fire someone for their speech without worrying too much about the Constitution. But a state entity needs to be far more careful, even when it's dealing with its own employees.

The added wrinkle is the First Amendment limitations placed on government employees. Most speech is protected, but speech made while acting as a government employee via their official duties is less protected than speech made off the clock as just a regular, non-government person.

All of that factors into this recent decision [PDF] by the Third Circuit Appeals Court. (h/t Eric Goldman)

At the center of this lawsuit are a bunch of Philadelphia cops who decided to be terrible online. In 2019, accountability activists Plain View Project outed several disturbing social media posts linked to these officers (as well as those made by officers from other major police departments). In response, the Philadelphia police commissioner stated that 13 officers would be fired for their posts, which contained invective targeting several protected groups.

The posts were described by the District Court as having spanned a multitude of topics such as protestors and their treatment, the use of violence against child molesters, Islam and its followers, refugees, police brutality, and much more." However, the posts also ridiculed and belittled members from the LGTBQ community, reportedly using individuals who are transgender as punch lines in their jokes, or worse, threatened violence against them... African Americans, Muslims, Mexicans, and foreign refugees were not spared as Plaintiffs played racist bingo, mocking as many ethnic or religious groups as possible."

In short, garbage people saying garbage things online. But these people were cops, who are expected to hold themselves to a higher standard. Their employer, the Philadelphia police department, obviously felt these posts went too far. 72 officers were investigated. The twelve officers bringing this lawsuit were punished to some extent for violating the PPD's social media policy, which said employees were prohibited from using ethnic slurs, personal insults, obscenities, or engaging in harassment, defamation, or fraud."

This governed use of social media while in uniform and on the clock. The policy also noted that personal use" of social media services by employees would be scrutinized to ensure these rules were followed.

The 12 disciplined officers sued, claiming the policy was unconstitutional and that their discipline was illegal First Amendment retaliation.

The Appeals Court (mostly) agrees.

The Constitutional guarantee of free expression is a pillar of our democracy, and yet, it can be bitter medicine - particularly when prescribed in defense of social media's more antisocial viewpoints.

[...]

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 of First Amendment retaliation at this juncture.

That's the thing about the First Amendment. In order for it to provide protection for the best of us, it also has to protect the worst of us. People who never utter anything hateful rarely need to worry about the government stepping on their free speech rights. Horrific criminals sometimes generate the best Fourth and Fifth Amendment case law. Bigoted assholes are, unfortunately, necessary to the establishment of solid First Amendment precedent.

But it won't protect these officers from further criticism and condemnation from the general public. So, while this lawsuit can proceed, there's no reason we can't use this decision to link these officers' names to their hateful social media posts. All of the following are taken directly from the decision:

Officer Christian Fencio (terminated):

In a response to a 2015 shared post describing refugees rejecting a food delivery because it bore a Red Cross logo, Fencio commented, Good, let them starve. I hate every last one of them." In a 2013 post, Fencio commented, Should have shot him," on an article detailing a theft in Missouri.

Officer Thomas Young (suspended, allowed to retire in lieu of termination):

In a post from 2015, Young commented on a shared YouTube link titled, Migrant Workers are Thrown Over Motorway Barrier by Police." Young replied, They should gather them up and send them back where they came from."

Officer Thomas Gack (restricted duty, termination):

In one 2015 post, Gack shared a meme depicting a box of shotgun shells edited to read, ISIS LOAD, 00 BUCK & BACON BITS." [...] In another post, Gack mocked female politicians. One of Gack's 2013 posts highlighted in Plain View reflects the comment Ha ha ha" in response to another post mocking families with incarcerated fathers.

Officer Edward McCammitt (suspended, retired):

In 2017, McCammitt shared a picture of an officer spraying a protester with mace with the caption, PARTICIPATION TROPHIES... NOW IN LIQUID FORM!" In a 2017 post, he shared a picture of a bumper detached from a vehicle, with the caption, THIS BUMPER WILL TAKE AN ANIMAL HIT AT 65 MPH... OR A PROTESTER, WHATEVER." One of McCammitt's posts from 2015 says, Like and share... If you support the Confederate flag."

Officer Tanya Grandizo (placed on restricted duty, still employed by the PPD):

[S]he reposted a list of all the reasons why Muslims cannot be good American[s]," which concluded, Therefore, after much study and deliberation, perhaps we should be suspicious of ALL MUSLIMS in this country," because they cannot and will not integrate into the great melting pot of America."

Officer Anthony Anzideo (restricted duty, still employed by the PPD):

Anzideo shared 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." In 2016, in response to a news article he posted from 6ABC.COM" titled Woman Shot and Killed in Lower Salford; 2nd Victim Shot in Lansdale," Anzideo responded POS...take him out."

Officer Anthony Acquaviva (placed on Giglio List, terminated):

In 2015, Acquaviva shared a post on Facebook from a fellow Officer in this action, Joseph Przepiorka, depicting a man with a beard overlaid with the text reading, ALL I WANT TO DO IS MOVE TO YOUR COUNTRY, RAPE YOUR WOMEN, BOMB YOUR BUSES, RIOT IN YOUR STREETS AND DEMAND THAT YOU ACCEPT MY RELIGION. WHY CAN'T YOU BE MORE TOLERANT?" In 2015, Acquaviva shared another post with the graphic of the United States overlaid with the text FUCK OFF WE'RE FULL." In a 2016 post, Acquaviva shared an image of generic police officers with the text, SHARE IF YOU THINK IT SHOULD BE LEGAL . . . TO THROAT PUNCH A CIVILIAN THAT SPITS ON A MAN IN UNIFORM."

Officer Kristine Amato (suspended 30 days, still employed by the PPD):

Responding to a 2017 post by Appellant Przepiorka about an article titled YouTube fight video shows what not to do when the cops come," Amato commented She's a racist reporter... plain and simple.... she not only took a swing at the cop but also continued to resist and strike the officer..." In 2017, Amato responded to a video shared by another titled Tulsa Officer Uses Car To Run Down Armed Suspect," with the comment, Awesome.. hopefully the wheels went over her scumbag ass."

Officer Joseph Przepiorka (suspended, retired):

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. [...] Przepiorka shared a picture of professional wrestler Steve Austin emblazoned with the confederate flag and the text, Give Me A Hell Yeah FOR TRUMP." In another post, he shared a picture of a white cap embroidered with the words, MAKE AMERICA NOT A BUNCH OF CUNTS OFFENDED BY EVERYTHING AGAIN."

Officer William Bowdren (placed on Giglio List, removed from Gun Violence Task Force, still employed by the PPD):

[B]owdren commented, Vroom Vroom" on an article [...] titled Tennessee Passes Bill Allowing People To Hit Protestors Blocking Roads." 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."

Officer Raphael McGough (received letter of reprimand, still employed by the PPD):

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." 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 Protestors Demanded Pullback."

Officer Francis Sheridan (threatened with a reprimand, still employed by the PPD):

Sheridan responded to another's shared link bearing the text CHILD RAPIST RAPED" and a graphic photo with Thank God for Prison Justice!" 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!"

So, it's mostly just the sort of thing you expect to see on Facebook. Except it's cops, rather than just regular people. This speech is protected, even if it violates the ethics policies of the police department. As the court sees it, there's enough of a whiff of retaliation to allow the lawsuit to continue. It doesn't necessarily mean these cops (current and former) are on their way to victory. It just means the First Amendment likely protects this sort of commentary (as awful as it is), even when it's made by people who should definitely know better.