CONSTITUTIONAL LAW-FIRST AMENDMENT-SPEECH-RETALIATION-POLICE DISPARAGING OF COMMUNITIES THEY PROTECT

Fenico v. City of Philadelphia, 2023 U.S. App. LEXIS 14305 (3d Cir. June 8, 2023) (Restrepo, C.J.). The Constitutional guarantee of free expression is a pillar of our democracy, and yet, it can be a bitter medicine—particularly when prescribed in defense of social media’s more antisocial viewpoints. In 2019, the City of Philadelphia took disciplinary action against twelve police officers for using Facebook to openly denigrate various minority groups and glorify the use of violence. The Appellant officers alleged that these actions constituted First Amendment retaliation, but the District Court dismissed their lawsuit for failure to state a claim, after concluding that their base and hateful speech was unprotected by the First Amendment. 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 for First Amendment retaliation at this juncture. We must accordingly reverse the dismissal of the Appellant officers’ claims and remand for further proceedings consistent with this Opinion. To plead a First Amendment retaliation claim, a government employee must allege “(1) that the activity in question is protected by the First Amendment, and (2) that the protected activity was a substantial factor in the alleged retaliatory action.” Hill v. Borough of Kutztown, 455 F.3d 225, 241 (3d Cir. 2006). To show that their speech is protected, the employee must establish first that: (1) in making it, they spoke as a private citizen, and (2) the statement involved a matter of public concern. Garcetti v. Ceballos, 547 U.S. 410, 418, 126 S. Ct. 1951, 164 L. Ed. 2d 689 (2006). If these two elements are satisfied, “the possibility of a First Amendment claim arises.” Id. The court must then determine, under the test elaborated in Pickering v. Board of Education of Township High School District 205, Will County, Illinois, if the employee’s interest in speaking outweighs the government’s interest in avoiding disruption to its operations. 391 U.S. 563, 568, 88 S. Ct. 1731, 20 L. Ed. 2d 811 (1968); Munroe, 805 F.3d at 466. To provide a concrete example, the Supreme Court in Snyder v. Phelps upheld a broad range of highly offensive protest signage criticizing specific religions (“Pope in Hell,” “Priests Rape Boys”), celebrating violence against a particular group (“Thank God for IEDs,” “Thank God for Dead Soldiers”), and condemning the LGBTQ community (“God Hates Fags,” “Fags Doom Nations”). 562 U.S. 443, 454, 131 S. Ct. 1207, 179 L. Ed. 2d 172 (2011). Although far from “refined social or political commentary,” the Court held this speech “plainly relate[d] to broad issues of interest to society at large.” Id. At the very least, the District Court on remand must assess the degree of public concern raised by those posts that informed each Officer’s disciplinary proceedings on an officer-by-officer basis, if not a post-by-post basis. It must also do so without considering the posts’ vituperative tone so much as their underlying content. Because these are determinations that the District Court ultimately could not make without further record development, we must reverse its premature dismissal of the action. However, at this stage in the proceedings, no concrete support for the City’s actions has been properly put forth, leaving an open factual dispute as to the likelihood of disruption posed by the Officers’ posts. The District Court erred in resolving this dispute in the City’s favor at the motion to dismiss stage. Flora v. County of Luzerne, 776 F.3d 169, 175 (3d Cir. 2015). We accordingly reverse the District Court’s dismissal of the Officers’ First Amendment retaliation claims and remand for further record development.