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Police sergeant facing discipline over anti-Muslim Facebook posts launches free-speech lawsuit

Police sergeant facing discipline over anti-Muslim Facebook posts launches free-speech lawsuit
“To protect and to serve” has become the ubiquitous motto of law enforcement departments across America. But now a group of attorneys are questioning the boundaries of that creed — through a database exposing thousands of discriminatory and violent social media posts from police officers.
The database, called the Plain View Project, was launched by Philadelphia criminal defense attorney Emily Baker-White in June after she discovered violent and racist memes posted by an officer in one of her cases. Curious to see how widespread such rhetoric is among U.S. law enforcement, she enlisted the help of other attorneys and researchers to identify more than 3,500 personal Facebook accounts belonging to law enforcement officials.
The group scanned through posts to asses whether they could “undermine public trust and confidence in the police,” and found more than 5,000 with the potential to do just that. The exposure of these posts — which included everything from memes discriminating against Muslims to blog posts promoting right-wing militias and police brutality — motivated police departments to take action and investigate officers within their own ranks.
But six months into the project, it’s prompting
something else — backlash from the officers whom the database has exposed. One of them, Phoenix Police Sgt. Juan Hernandez, says he is now suing his department for disciplining him, claiming his First Amendment rights are being violated.

Hernandez believes his department’s social media policy is “unconstitutional”

Hernandez’s story dates back to June, when 11 posts from his personal social media accounts were flagged by the Plain View Project. An over-30-year veteran of the department, Hernandez’s posts touched on — or openly promoted — discrimination, including a link from a conservative blog that referred to immigrants as “illegal” and a meme that claimed the most common name for a convicted gang rapist in England is “Muhammad.”
The Phoenix Police Department’s Professional Standards Bureau found Hernandez’s memes and links denigrating Muslims to be in violation of the department’s social media policy, which states that officers are “free to express themselves as private citizens on social media sites” so long as their speech does not “impair working relationships,” “undermine respect or public confidence in the Department” and more.

The department (which has not yet made a decision) says Hernandez could face a 40- to 240-hour suspension without pay, and demotion or termination, for his violation of the policy. But Hernandez and his attorney, Steve Serbalik, disagree — and plan to fight back. In an interview with Yahoo Lifestyle, Serbalik says the department’s social media policy is “unconstitutional” and has the potential to “punish officers for speaking out — even speaking out about public concern.”
“A police officer, just like a teacher, or a firefighter, or you or me, can comment on issues that they see are being widely covered in the news,” says Serbalik, who frequently represents Phoenix police officers and sits on the panel for the Arizona Conference of Police and Sheriffs (AZCOPS), a non-profit organization dedicated to advocating for police. “Police officers, just like other government employees, have the First Amendment right to be able to contribute to matters related to public concern.”
Serbalik adds, “There's no allegation that Sgt. Hernandez has been biased or inappropriate in any of his on-duty activities. Sgt. Hernandez just reposted matters that he saw online that were in the news. They were basically topics of conversation at that point, and he wanted to talk about those issues with his friends and family.”

Legal experts disagree, saying the government can “limit speech”

While the First Amendment prevents the U.S. government from depriving its citizens of free speech through suppression, punishment or censorship, legal experts tell Yahoo Lifestyle that employers can make hiring — and firing — decisions based on employee speech. Ken Paulson, the president of the First Amendment Center and dean of the College of Media and Entertainment at Middle Tennessee State University, says this is especially true for government employees.
“When you are an employee of a government institution, they can control many things about your free expression, if your expression is somehow a component of the job you do. So the courts have consistently upheld the right of government institutions to set standards of behavior and activities if those activities would undermine the ability to do the job well,” Paulson tells Yahoo Lifestyle.
Paulson says it is part of a law enforcement officer’s job not only to protect and serve everyone in the community, but to convey that in actions — and words. “If they engage in speech that makes police officers less trusted, the government has a right to limit that speech,” says Paulson.

Paulson disagrees about the “privacy” of social media accounts, and says that while Hernandez could likely voice these opinions in the privacy of his home, there’s “no reasonable expectation of privacy” online — meaning that social media posts can easily be found and shared. The department’s policy even cautions personnel to “be mindful their speech becomes part of the worldwide electronic domain” when using social media.
“Anyone that posts on a digital platform has to have the expectation in 2019 that those comments could be shared widely. Any employer in America can take steps to make sure their employees don't embarrass the business,” says Paulson.
While Hernandez made no statements that explicitly encouraged or incited violence, executive director of the First Amendment Center Lata Nott says that the department would simply have to prove that their comments on social media undermined the department from doing their job effectively — and similar cases have typically sided with the government employer.
In July, a Louisianna police officer was fired for suggesting shots should be fired at Rep. Alexandria Ocasio-Cortez (D-N.Y.), a member of “the Squad” of progressive congresswomen of color who have become a frequent political target. Hernandez’s job, she says, could be at risk, too. “[Previous cases] would indicate a certain bias that the police department doesn't want to be associated with. They can make the argument that this will make our job harder to police the community,” Nott tells Yahoo Lifestyle.

Phoenix may become a battleground for police and censorship

The Plain View Project, which has spotlighted officers in eight cities thus far, hit the Phoenix Police Department particularly hard. The database implicated 97 former and current members of the Phoenix Police Department— which is no surprise, given that Phoenix is the largest city in America without independent police oversight.
For Phoenix Police Chief Jeri Williams, the discovery of the social media posts was hugely disappointing. In an interview with the Arizona Republic at the time, she called the posts “embarrassing” and “disturbing,” adding that they “completely contradict how the Phoenix Police Department should speak about the members of our community or others.”
Tommy Thompson, a spokesperson for the Phoenix PD, tells Yahoo Lifestyle that the Plain View Project “attracted wide-spread media attention, and rightfully, the public demanded answers.” Some of the officers included in the database are being investigated by the department’s Professional Standards Bureau to evaluate any employee misconduct.
The Phoenix Police Department declined to comment on the pending litigation with Hernandez and the Disciplinary Review Board recommendations, besides describing the process and makeup of its board. As of now, the board has decided not to proceed any further with Hernadez’s case until the judge in the lawsuit weighs in.

Can violent rhetoric lead to violence?

Hernandez’s next court hearing, set to take place Nov. 19, could have major implications for the future — helping set a precedent for whether or not officers have free rein to post discriminatory things online.
For Serbalik, it’s a no-brainer. He says police officers, just like civilians and suspects, are owed the right to free speech from the department. “We want a policy that respects officers’ rights to contribute to matters of public concern, but also helps make sure that the department is being respectful of everyone's constitutional rights — not just suspects or civilians, but the officers that work there,” says Serbalik.
On the other side, Plain View Project Baker-White argues that their statements and conversations aren’t just upsetting, but potentially dangerous.
“There are a lot of posts that have eight comments underneath them, and three of those comments are by other police officers, and in those long comment threads, you often see a kind of piling on. If one guy makes a comment that’s sort of violent, another guy will say, ‘Oh, that’s not enough, I would have hit him harder.’ ‘I would have shot him.’ ‘I would have killed him.’,” Baker-White told the New York Times.
While Baker-White acknowledges that “police officers have an incredibly hard job,” she says she fears that the violent and discriminatory rhetoric online could influence how they act on the job. “It’s not okay then to say, ‘Let’s go get these animals tonight,’” Baker-White said. “It creates a space where officers feel like this is what they should do or think, and I fear that leads more officers to do and think this stuff.”

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