Officer Fired for Criticizing a Sheriff on Facebook Cannot Proceed with First Amendment Claim

​A city police officer who was fired for criticizing the county sheriff on Facebook could not proceed with her claim of First Amendment retaliation, a federal appeals court ruled. Although the officer was speaking as a private citizen and her speech was on a matter of public concern, the police department's interest in maintaining a good working relationship with the sheriff's office outweighed any First Amendment protection the officer's speech might have had, the court said.

The officer periodically used her Facebook account to criticize the county sheriff. Her supervisors became concerned that her posts would undermine the department's relationship with their sister law enforcement agency and asked her to stop. They also reprimanded her for other behavioral issues.

In one post, she claimed the sheriff had excluded her from a training event because she was a woman, and she opposed his re-election. The city then fired her, and she sued the city, claiming retaliation in violation of the First Amendment. The trial court dismissed her lawsuit before trial and she appealed.

Proving First Amendment Retaliation Claims

The appeals court initially noted that to prevail under her First Amendment retaliation theory, the officer must first show she engaged in constitutionally protected speech. Although a government employee enjoys the right to speak on matters of public concern, that right must be balanced against the government's need to ensure efficient provision of public services, the court said. Government entities need a significant degree of control over their employees' words and actions, the court observed.

As a government employee, the officer's speech was constitutionally protected if:

• She was speaking as a private citizen and not pursuant to official duties.
• Her speech was on a matter of public concern.
• Her speech interest outweighed the city's interest in promoting the efficiency of the public services it performs through its employees.

The parties did not contest that the statements at issue were made in the officer's capacity as a private citizen, so the court went on to address whether her speech addressed a matter of public concern.

Issues of public concern include any matter of political, social or other concern to the community, the court said. Examples include allegations of public corruption, mismanagement or misconduct in government, as well as accusations of discrimination.

The post that suggested sex discrimination and political retribution by an elected official fell safely within those categories, the court said. However, the court then concluded, even though the officer's statements were on a matter of public concern, the trial court did not err in dismissing the First Amendment retaliation claim before trial.

In determining whether the officer's speech interest outweighs the city's interest in promoting the efficiency of the public services it performs, the court was required to use the balancing test established by the U.S. Supreme Court in Pickering v. Board of Education.

The city prevails if it shows that the potential disruptiveness of the officer's speech was enough to outweigh whatever First Amendment value it might have had, the court explained.

The city said it terminated the officer because her Facebook post threatened to undermine the city police department's working relationship with the county sheriff's office. The appeals court agreed with the trial court that this concern was sufficient to justify the officer's termination.

The court noted that the city police department and the county sheriff's department share responsibilities for effective law enforcement and coordinate various training and investigatory functions.

There is ample evidence, the court said, the officer's Facebook post risked undermining this relationship. The officer had worked for the sheriff's department as a corrections officer before her employment with the city police department. She had been fired from that position, beginning a decade-long history of conflict with the sheriff's office.

Later, during her tenure at the police department, she made a series of Facebook posts that asserted sharply personal criticisms of the sheriff and his supporters.

Against that backdrop, it was reasonable for the city to predict that the officer's final Facebook post—the latest escalation in a persistent dispute between her and the sheriff's office—would disrupt the department's working relationship with the sheriff's office. And, the court said, preserving that relationship is a weighty interest in the city's favor, especially when city and county officers may have to rely on one another in life-threatening circumstances.

Kirkland v. City of Maryville, 6th Cir., No. 21-5569 (Dec. 5, 2022).

Joanne Deschenaux, J.D., is a freelance writer in Annapolis, Md.