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Welcome to Jack "Out of the Box." This is a spin-off of the Firm's InfoLaw Newsletter, much like "CSI: Miami" is a spin-off from "CSI." Except without all the corpses. I plan to update the blog at least weekly. Really. It's not like when I used to promise my mom to clean my room once a week. I'm more mature now. And of course, the InfoLaw Newsletter will continue every two weeks. The blog will feature shorter pieces, and ideally, reader feedback. Should be fun. Oh yeah, and informative.

"Buzz" Is Bad News For Mississippi Cop

Dec 19, 2013

Mississippi police officer Susan Graziosi lost her job because of a “buzz.” And not the “buzz” that comes from drugs or alcohol. No, the “buzz” that got Officer Graziosi fired was the office “buzz” that her Facebook rant started. And according to a Mississippi federal court, that firing did not violate the First Amendment.

Some explanation is probably in order. Officer Graziosi was a Greenville police officer for 26 years. When a police officer from a nearby community was killed in the line of duty, Greenville Chief of Police Freddie Cannon opted not to send a representative to the funeral citing the cost of gasoline. This decision did not sit well (or, I suppose in Mississippi “set well”) with Officer Graziosi. Officer Graziosi did what any right-thinking American would do in this situation – she posted her feelings on her Facebook page.  Specifically:

I just found out that Greenville Police Department did not send a representative to the funeral of Pearl Police Officer Mike Walter, who was killed in the line of duty on May 1, 2012. This is totally unacceptable. I don’t want to hear about the price of gas-officers would have gladly paid for and driven their own vehicles had we known the city was in such dire straights (sic) as to not to be able to afford a trip to Pearl, Ms., which, by the way, is where our police academy is located. The last I heard was the chief was telling the assistant chief about getting a group of officers to go to the funeral. Dear Mayor, can we please get a leader that understands that a department sends officers of (sic) the funeral of an officer killed in the line of duty? Thank you. Susan Graziosi.

Graziosi expanded on the theme in responses to comments, noting: “you’ll be happy to know that I will no longer use restraint when voicing my opinion on things. Ha!” Based on her original posting, “restraint” does not seem to be much of an issue for Officer Graziosi. But I digress. Chief Cannon was unamused, and decided to terminate the long-time officer. She then filed a wrongful discharge suit, arguing that her comments were protected by the First Amendment. 

Public employees occupy a unique position for First Amendment purposes. On the one hand, they are employed by the “public” – so any discipline is “state action.” That potentially brings the Constitution into the discussion. In contrast, while private employees have some protection (e.g. discrimination laws) those are protections enacted via statute. There’s no constitutional protection. So if my partners decided to expel me from the partnership based on some comment I made on my blog (and after four years of doing this, it is a minor miracle that they haven’t) I’d have no First Amendment claim. But a public employee in the same situation might.

But on the other hand, a public employee is, you know, an employee. And that means the First Amendment protections aren’t unlimited. A supervisor has to be able to demand some level of respect and discipline from underlings. Which means courts have to balance the issues in these cases. 

Courts look to two things when they review these cases – does the speech affect a matter of public concern, and does the employer’s interest in maintaining discipline outweigh the employee’s interests? The court found that both tests favored the Department.

First, while Officer Graziosi argued that her post addressed the issue of how the department allocated its public funds, and thus addressed a matter of legitimate public concern, the court felt it was more like a disgruntled employee’s rant. Her post, according to the court, came from the perspective of “a disgruntled police officer, not a concerned citizen.”

Second, the court considered the testimony from the Chief -- that there was a “buzz” around the department following the Facebook posts – as evidence of a disruption that outweighed any First Amendment interest in the speech. 

I’m not so sure about this decision. Can’t a person speak from the perspective as a “concerned citizen” and a “disgruntled police officer” at the same time? It seems to me like they can. Officer Graziosi was no doubt personally offended by the funeral decision, but what if that was a symptom of more general misplaced priorities in the department. That sounds to me like a matter of public interest.

And as for the buzz, can we assume that the police officers aren’t middle school students? I suspect a department of professionals can handle a little healthy debate.  And if the Chief is that sensitive, maybe he’s the problem.

I am a big believer in the First Amendment, so in my view, close calls should favor the speaker. I think this is one of those cases.

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