The Plain View Project, which collected Facebook posts and comments made by current and former police officers from across the United States, became publicly available in 2017. The database contained over 3,000 posts attributed to Philadelphia police officers, 593 of which were tied to the plaintiffs in these lawsuits. The posts covered a wide range of topics, including race, religion, sex, gender, policing, penology, vigilantism, and other controversial subjects. The posts ranged from memes and news stories to political commentary. Three plaintiffs had fewer than 20 posts collectively, while three others had almost 200 posts.
In February 2019, Injustice Watch, a non-profit affiliated with the Plain View Project, contacted the Philadelphia Police Department (PPD) about an upcoming article in The New York Times highlighting the social media posts of seven Philadelphia officers, including several of the plaintiffs. Later that year, the Plain View Project received significant media attention. Philadelphia City Council ordered hearings into the matter and the PPD launched an internal investigation.
Through the investigations, each officer was found to have violated PPD policy, with disciplinary actions that ranged from reprimand to termination. The District Attorney’s Office also issued Giglio letters to some officers, alerting them that their conduct would be disclosed to the defense in cases where they testified. Most of the officers were fired or resigned, but several, represented by the Fraternal Order of Police, Lodge #5, were eventually reinstated.
The officers then filed lawsuits, claiming that the City violated their rights under the First Amendment by disciplining them for their protected speech. The City moved for summary judgment on the basis that the speech was not protected.
The United States District Court for the Eastern District of Pennsylvania granted the City’s motion for summary judgment, dismissing the officers’ claims. The Court applied the established three-part test for First Amendment retaliation in the employment context, determining that in order to be protected, the officer’s speech must be made as a private citizen, on a matter of public concern, and the employee and public’s interest in the speech must outweigh the government’s interest in avoiding disruption of its operations. It was undisputed by the parties that the officers were speaking as private citizens, so the Court proceeded to the other two elements.
As another threshold inquiry, the Court also determined that each of the officers’ posts did touch on matters of public concern. The Court stated that “inappropriate or controversial” speech is not irrelevant to whether it is a matter of public concern, it is only relevant when evaluating the disruptiveness of the speech.
The Court found that speech relating to race, religion, sex, gender, immigration, the police, crime, and other related topics was of public concern.
The Court then engaged in an officer-by-officer analysis of each plaintiff, balancing the interests of each officer and the public in the speech against the City’s interest in maintaining an efficient workplace and avoiding disruption. In every instance, the Court concluded that the City’s interest outweighed the interests of the officer and the public. The Court found that the tone of the posts often suggested a clear bias against various protected groups, particularly Muslim people, which could erode public trust and the ability of officers to perform their duties. Further, many of the posts contained language that advocated or expressed approval of violence. The Court cited an officer’s duty to be a credible witness in criminal proceedings as a factor that could be undermined by their public posts.
The Court also rejected several accompanying arguments made by the officers. The officers contended that because “the City had not demonstrated that any public outrage following the database’s revelation was caused specifically by any of the Plaintiffs’ posts, but rather by the contents of the Plain View database in toto, such outrage should not be weighed against them in the Pickering balance.
“If the Plaintiffs were right – if the disruption caused by a group of employees could not be held against any individual employee unless that employee, considered alone, was a sufficient cause of the disruption – then a government employer’s ability to root out disruptive speech would diminish as the number of disruptive speakers grows and their voices become more cacophonous, in that it would be more difficult to attribute sufficient responsibility to any given employee.”
The officers drew out another issue regarding the City’s prediction of disruption, noting “the undisputed fact that their ‘posts had existed in plain view for several years without any evidence of discovery’ to argue that the posts were not likely to be discovered by the public in the first place, and were thus unlikely to cause disruption.” The problem with this argument, in the Court’s eyes, was that the caselaw supporting the officers’ contention that the lack of discovery evidenced a lack of disruption was made up of cases where the offending language was never discovered. “In the instant cases – as the Plaintiffs do not dispute – the offensive Facebook posts were eventually discovered by the public at large, as they were covered by local and national news.” Thus, the argument was of no help to the officers.
Fenico v. City of Philadelphia, 2024 U.S. Dist. LEXIS 195138 (E.D. Pa., 2024).