A group of active and former Philadelphia Police Department officers disciplined for inflammatory
Facebook activity have lost their First Amendment lawsuit against the city, with a Pennsylvania federal judge ruling Tuesday that the city had the right to terminate officers for making racist, violent and otherwise offensive posts.
U.S. District Judge Wendy Beetlestone granted the city's request to toss the case in a
298-page opinion analyzing dozens of Facebook posts made by several officers and exposed by the Plain View Project, a database cataloging law enforcement members' social media posts.
The officers argued in their 2020 lawsuit that the posts were protected by the First Amendment and that the city retaliated against them for exercising free speech as private citizens. However, Judge Beetlestone agreed with the city's position that the online comments and the public outcry they created had the potential to disrupt police department operations, which outweighs an employee's right to free expression.
That potential for disruption was too speculative, the officers argued, pointing out that the posts had been public for a long time without incident — sometimes years — before Plain View published them. They cited the Ninth Circuit's 2021 ruling in
Moser v. Las Vegas Metropolitan Police Department 
, where the court held that an agency's fear of disruption can be put aside if there is no evidence the offending content will be discovered.
But that case involved only a single offensive post from a SWAT officer advocating for extrajudicial violence of a suspect, promptly taken down before the public could react, Judge Beetlestone said.
"In the instant cases — as plaintiffs do not dispute — the offensive Facebook posts were eventually discovered by the public at large, as they were covered by local and national news," Judge Beetlestone said. "Therein lies the difference. Moser does not stand for the proposition that offensive speech is unlikely to cause a disruption if it takes a long time to be discovered — indeed, as the Ninth Circuit noted, what matters is whether or not 'the community … discovered the speech or would inevitably discover it.'"
In June 2023, the Third Circuit
revived the case after it was initially dismissed before reaching discovery.
The judges of that court held that while the content of the social media posts was objectionable, the lower court was too quick to toss the officers' claims.
"Posts like the officers' have the capacity to confirm the community's worst fears about bias in policing, and we recognize that the effectiveness of public safety efforts in Philadelphia may well be at stake," U.S. Circuit Judge L. Felipe Restrepo wrote in the court's June 2023 opinion. "That said, the First Amendment requires a stronger factual tether than the district court held when it dismissed the officers' retaliation action."
The dozen officers filed their complaint against the city in 2020. Some of the officers had been fired while others faced lesser disciplinary action. Judge Beetlestone noted in her opinion Tuesday that some of the fired officers were reinstated after the police union stepped in.
The city declined to comment. An attorney for the officers did not immediately respond to a request for comment.
The officers are represented by Larry L. Crain of
Crain Law Group PLLC and Jonathan J. Sobel of the Law Offices of Jonathan J. Sobel.
The city is represented by Meghan Byrnes of the City of Philadelphia Law Department.
The case is Fenico et al. v. City of Philadelphia, case number
22-1326, in the
U.S. Court of Appeals for the Third Circuit.
--Editing by Andrew Cohen.
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