Privacy Issues in the Community College Workplace

cannot meet its burden, then the First Amendment will protect the plaintiff’s speech.

Applying this test, the court in Moser found that the employee met his burden because: (1) the SWAT sniper’s comment addressed an issue of public concern in that it was about a political, social or another concern to the community or was the subject of legitimate news interest; (2) the SWAT sniper’s made his comments as a private citizen and not a public employee because he was at home, off-duty and used his personal Facebook account; and (3) he was transferred out of SWAT because of his Facebook post. In Moser , the court held that it could not balance the employer’s administrative interests against the employee’s First Amendment rights because of two factual disputes. First, it found there was a factual dispute over what the Facebook comment objectively meant. The police department contended it advocated unlawful violence by law enforcement. Under the department’s interpretation, the Facebook comment would not have needed the highest level of First Amendment protection. However, the employee argued he did not advocate unlawful violence, but instead expressed frustration at the perils police officers face. Under the employee’s argument, his Facebook post would be entitled to the highest level of protection as it related to an important public policy issue. A significant point to take away from this part of the ruling is that before disciplining employees based upon their speech, public employers must consider whether the employee could claim his or her speech sought to comments on problems or challenges of the employee’s work that the public would be concerned about (not just personal gripes). If it could be interpreted that way, the speech will be entitled to greater protection under the First Amendment. After addressing the strength of the employee’s First Amendment rights, the court in Moser then considered the other side of the balancing test, which is the employer’s administrative interests. The court found there was a factual dispute over whether the Facebook post would have caused disruption to the police department or exposed it to future legal liability. It noted there was no media coverage, no evidence that anyone knew about the post other than the person who made the anonymous tip, and little chance the public would have seen it because the SWAT sniper deleted his Facebook comment. Accordingly, public employers should consider whether they can produce evidence that the speech has or will disrupt their workplace before proceeding to discipline speech that touches on matters of public concern. The police department has the option to file a petition for rehearing en banc (i.e., by a larger panel of the Ninth Circuit) to ask the Court of Appeal to reach a difference decision, and it can also appeal to the U.S. Supreme Court. However,

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