Cop's anti-Muslim Facebook posts were free speech, court rules

A Facebook logo is displayed on a smartphone in this illustration taken. REUTERS/Dado Ruvic/Illustration
  • Posts were offensive but also of public interest, court says
  • Latest ruling to find public workers' online posts are protected

(Reuters) - Posts that a Phoenix, Arizona, police sergeant made on his personal Facebook page denigrating Muslims were protected free speech under the U.S. Constitution even though they were offensive, a U.S. appeals court has ruled in reviving his lawsuit against the city.

A unanimous three-judge panel of the 9th U.S. Circuit Court of Appeals said on Friday that the 11 posts by Juan Hernandez, which he made years before the police department moved to discipline him, touched on matters of public concern and had nothing to do with his job duties.

The court reversed a Phoenix federal judge who said that because Hernandez's posts were incendiary and mocked Muslims, they were not protected by the First Amendment of the U.S. Constitution.

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One of the 2014 posts stated that most men convicted of rape in England are Muslim and criticized British media for calling convicted rapists "Asian," and another mocked scientific contributions by Muslims.

The 9th Circuit said Hernandez's posts, many of which reflected bias against racial or religious minorities, added little value to public discourse and the Phoenix police department may be warranted in disciplining him, but that U.S. District Judge Michael Liburdi had thrown out his lawsuit too early.

The court sent the case back to Liburdi to determine whether the city's interest in regulating the conduct of police officers outweighed Hernandez's free speech rights.

Hernandez had sued Phoenix in 2019, after the police department determined that he should face disciplinary action over the posts but before it actually imposed any. The discipline could range from a one-week suspension to termination, according to filings in the case.

The Phoenix police department and a lawyer for the city did not immediately respond to requests for comment. Neither did a lawyer for Hernandez.

The 9th Circuit panel included Circuit Judges Richard Paez, Richard Clifton and Paul Watford.

Courts have increasingly been asked to grapple with the free-speech implications of public employees' social media posts, and have largely sided with workers in high-profile cases.

The 11th Circuit in April said posts two Florida firefighters made in a private Facebook group criticizing a union official were protected free speech and revived their lawsuit claiming they should not have been disciplined over them.

And in 2020, the 6th Circuit ruled that a Cleveland emergency medical service worker's Facebook posts supporting police officers who had shot and killed 12-year-old Tamir Rice, who was wielding a toy gun, involved a matter of public concern and were protected.

The case is Hernandez v. City of Phoenix, 9th U.S. Circuit Court of Appeals, No. 21-16007.

For Hernandez: Steven Serbalik

For the city: Stephen Coleman of Pierce Coleman

Read more:

Firefighters' Facebook post critical of union official is free speech, says court

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Dan Wiessner (@danwiessner) reports on labor and employment and immigration law, including litigation and policy making. He can be reached at daniel.wiessner@thomsonreuters.com.