Facebook Posts Are Not Always Protected Free Speech

Public SectorFacebook continues to be a place where posts—and lawsuits—thrive. Consider the case of Susan Graziosi, a patrol officer in Greenville, Mississippi. (Graziosi v. City of Greenville (5th Cir. 2015). Ms. Graziosi worked for the Greenville Police Department for over 25 years. In early 2012, she was one of several officers who wanted to attend the funeral of a police officer killed in the line of duty in neighboring Pearl, Miss.

The officers wanted to take patrol cars to the funeral, but the city council had disallowed the personal use of patrol cars for budgetary reasons. Chief of Police Cannon discussed sending one patrol car with the officers as a compromise, but realized that a single patrol car could not accommodate the large number of officers who wanted to attend and decided the officers would have to drive their own cars.

None of the officers attended the funeral.

Upon learning this, Graziosi posted on her own Facebook page: “This is totally unacceptable, . . . Dear Mayor, can we please get a leader that understands that a department sends officers [to] the funeral of an officer killed in the line of duty?” Several of her Facebook friends “liked” and commented on her post. Had it stopped there, the matter may not have come to a head.

(It did not stop there.)

Several of her Facebook friends commented on her post, and she responded with, “[W]e no longer have … LEADERS,” adding, “Also, you’ll be happy to know that I will no longer use restraint when voicing my opinion on things.” She posted this statement to then-Mayor Chuck Jordan’s public Facebook page, adding, “If you don’t want to lead, can you just get the hell out of the way?”

Chief Cannon and Mayor Jordan discussed the post, and the chief opened an internal investigation. Graziosi was terminated for insubordination and failing to support fellow employees. She filed suit under the Civil Rights Act of 1871, claiming a violation of her free-speech rights. The city won on summary judgment.

The Fifth Circuit Court of Appeals affirmed the summary judgment. The court found that although Graziosi’s comments were made as a citizen, they did not address a matter of public concern. “Through her statements, Graziosi publicly criticized the decision of her superior officer and requested new leadership,” the court wrote. “These statements, coupled with her vow of future and continued unrestrained conduct ‘smack of insubordination,’ and Greenville was well within its wide degree of latitude to determine that dismissal was appropriate.”

The court also noted that even if her comments were a matter of public concern, Graziosi’s interest in making her grievance public did not outweigh the city’s interest in maintaining discipline.

The court also took into account the wide latitude afforded police departments as paramilitary operations to discipline employees.

Courts across the county continue to grapple with freedom of speech and social media. This is one more case that helps public-sector employers understand the dimensions of this issue.