Cop Suspended for Facebook Posts Has Retaliation Claim

From labor disputes cases to labor and employment publications, for your research, you’ll find solutions on Bloomberg Law®. Protect your clients by developing strategies based on Litigation...

By Kevin McGowan

Sept. 30 — A Cleveland police sergeant suspended for 10 days because of his Facebook posts that criticized the indictment of fellow officers for shooting two unarmed suspects may take his First Amendment retaliation claim to trial ( Hamm v. Williams , 2016 BL 323061, N.D. Ohio, No. 15-273, 9/29/16 ).

The case illustrates how an employee’s private use of social media intersects with a public employer’s right to regulate employee speech, particularly in a paramilitary setting.

Under U.S. Supreme Court precedent, government workers speaking as private citizens on matters of public concern have First Amendment protection.

But the Supreme Court also has endorsed a balancing test in which a public employer’s interest in a productive workplace can outweigh an employee’s interest in the protected speech.

Officer Johnny Hamm’s constitutional interest in speaking as a citizen on a matter of public concern in this case outweighed the Cleveland police department’s interests in maintaining employee discipline and the department’s public reputation, a federal district court in Ohio said Sept. 29.

The city argued a police department has a greater interest than a typical government employer in regulating its employees’ speech activities.

But the court said absent evidence that Hamm’s off-duty social media posts on his home computer actually disrupted the department’s operations, a jury reasonably could find the unpaid suspension violated his First Amendment rights.

Off-Duty Posts Held Protected

In June 2014, Hamm on his Facebook page commented about a grand jury’s indictment of seven police colleagues for manslaughter and various misdemeanors stemming from the officers’ fatal shooting of two unarmed suspects.

In his first post, Hamm expressed support for his fellow officers. About a week later, Hamm again commented on Facebook, this time writing that an unidentified individual was upset by his original comments and had reported the first post to Hamm’s supervisors.

The supervisors investigated and determined that Hamm had breached department rules against using social media to discuss a criminal investigation involving the department or posting material that would “tend to diminish” public esteem for the department.

Hamm spoke as a private citizen on a matter of public concern in his Facebook posts, the court said.

No Actual Disruption

The defendants, including the city and Hamm’s immediate supervisors, must show evidence that his speech actually disrupted the workplace to justify his suspension, Judge Christopher A. Boyko wrote.

But there’s no evidence that Hamm’s posts resulted in any work stoppages, any other officer’s refusal to work or any workplace conflict between Hamm and any other officer, the court said.

Hamm, therefore, may proceed to trial on his First Amendment retaliation claim, the court decided.

Berkman Gordon Murray & DeVan represented Hamm. The Cleveland Department of Law represented the city defendants.

To contact the reporter on this story: Kevin McGowan in Washington at

To contact the editor responsible for this story: Susan J. McGolrick at

Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.

Request Labor & Employment on Bloomberg Law