On October 17th, 2013, the United States Court of Appeals for the 11th Circuit upheld the discipline of Maria Gresham, an Atlanta police officer, who posted comments on her Facebook, criticizing another officer of the department. The Court rejected Maria Gresham’s argument that her comments were protected under the First Amendment free speech.
Maria Gresham criticized her colleague for interfering in an unethical manner with the investigation of a person she had arrested for fraud and financial identity theft. Maria Gresham’s Facebook page was “set to private,” but was available for viewing by an unknown number of her “friends,” who had the option of broadly distributing the comments by sharing them. The department had a policy that required any criticism of a fellow officer to be “directed only through official department channels, to correct any deficiency, and . . . not be used to the disadvantage of the reputation or operation of the Department or any employees.” However, Maria Gresham violated this rule when she posted her comments on Facebook, which led the Office of Professional Standards to open an investigation on her behaviour.
When Maria Gresham was under investigation, a promotion came up for which she would have been eligible. Therefore, Maria Gresham argued that her lack of promotion was retaliation against her First Amendment Facebook speech. However, according to the department’s policy book, an employee under investigation was not eligible for promotion.
As a public employee, Maria Gresham must satisfy the Pickering test to bring a First Amendment retaliation claim. When applying the four prongs Pickering test, the Court had “to determine whether (1) Plaintiff’s speech involved a matter of public concern; (2) Plaintiff’s interest in speaking outweighed the government’s legitimate interest in efficient public service; and (3) the speech played a substantial part in the government’s challenged employment decision. If Plaintiff establishes the foregoing, then she would prevail unless Defendants prove that (4) they would have made the same employment decision even in the absence of the protected speech. The first two prongs of the analysis are questions of law, while the latter two are questions of fact.”
Like the district court, we assume, arguendo, that Plaintiff’s speech implicated a matter of public concern, and we turn to the second prong in which we balance the plaintiff’s interest in speaking against the government’s legitimate interest in the efficient operation of the police department.
The Court concluded: “we note that the context of Plaintiff’s speech is not one calculated to bring an issue of public concern to the attention of persons with authority to make corrections, nor was its context one of bringing the matter to the attention of the public to prompt public discussion to generate pressure for such changes. Rather, we agree with the district court that the context was more nearly one of Plaintiff’s venting her frustration with her superiors. Thus, we conclude that Plaintiff’s speech interest is not a strong one, a factor which the Supreme Court has indicated is appropriate to consider in the balancing process. Moreover, even if Plaintiff’s speech interests were somewhat stronger, we conclude that the Department’s interest is considerable, and that the balance clearly tilts in favor of the Department.”