Privacy Issues in the Workplace

Moser v. Las Vegas Metropolitan Police Department 468 This case involved a SWAT sniper who commented on a friend’s Facebook post which linked to an article about a 2015 shooting of a police officer and the suspect was later arrested. He wrote, “It’s a shame he didn’t have a few holes in him.” An anonymous tip came in about the post, there was an internal investigation, and the officer was transferred out of SWAT and put back on patrol. The department felt that his comment showed he had become “a little callous to killing.” The SWAT sniper filed a lawsuit against the department alleging they had retaliated against him for speech protected under the First Amendment. The court in Moser began by explaining the applicable test the U.S. Supreme Court has developed to address public employee First Amendment claims against their employers. Under that test, the plaintiff must show: (a) he spoke on a matter of public concern; (b) he spoke as a private citizen rather than a public employee; and (c) his speech was a substantial factor in his discipline. If the employee makes this showing, the burden shifts to the employer to demonstrate that its legitimate administrative interests outweighed the employee’s First Amendment rights. If the employer 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, which means it related to any matter that is political, social or another concern to the community or is the subject of legitimate news interest; (2) the SWAT sniper’s comments were made 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 SWAT sniper contended he did not advocate unlawful violence, but instead expressed frustration at the perils police officers face. Under his interpretation, his Facebook post would have needed the highest level of protection because it would relate 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 entities must analyze potential ways the employee could claim his or her speech sought to address problems at work. If it could be interpreted that way, the speech will be entitled to greater protection under the First Amendment.

Privacy Issues in the Workplace ©2021 (s) Liebert Cassidy Whitmore 147