Free speech at issue in police ruling
When a Las Vegas policeman was shot and wounded and officers arrested the suspect, a sniper on the SWAT team, Charles Moser, said on Facebook that “it’s a shame he (the suspect) didn’t have a few holes in him.” Saying Moser was advocating violence, the Police Department removed him from the SWAT team and reduced his salary.
A federal appeals court ruled on Tuesday that Moser — who claimed he was merely arguing for officers’ right to defend themselves — could sue the department for allegedly violating his freedom of speech. The ruling raised issues that could also arise in future proceedings against instigators of last week’s violence at the U.S. Capitol.
Moser’s Facebook post “could be objectively interpreted as a provocative political statement against police officers being shot in the line of duty,” Judge Kenneth Lee, an appointee of President Trump, said in a 21 ruling of the Ninth U.S. Circuit Court of Appeals in San Francisco reinstating the lawsuit, which a federal judge had dismissed.
Although Moser’s words were “inflammatory,” Lee said, his comment, as the officer interpreted it, “falls within the ‘core’ First Amendment zone because it highlights the perils faced by police officers and the government’s failure to protect them.” Lee said both interpretations were plausible and a jury could decide which one to believe.
In dissent, Judge Marsha Berzon said Moser’s post was most reasonably understood as advocating “revenge at the point of capture” and the Police Department did not violate his rights by demoting him.
Officer Gregory Sedminik was shot in the arm and torso after responding to a domestic dispute in December 2015. He recovered from his wounds. The gunman, Teag Fox, was
“Whether such glorifications of violence rise to incitement is a perpetually difficult question for First Amendment law.”
Stanford Law Professor Nate Persily
later convicted of attempted murder.
Moser, a police officer since 2000, was not involved in the incident and made his comment on a friend’s Facebook page. He told investigators later that his posting had been “completely inappropriate” but that he had only meant to express frustration that the officer had no chance to defend himself. A police labor board found that Moser had become “a little callous to killing.”
The ruling was issued while House Democrats prepared for Wednesday’s vote on impeaching Trump for “incitement of insurrection” by directing crowds of angry supporters to invade the Capitol building in a riot that left five people dead. Meanwhile, a District of Columbia prosecutor said his office was investigating potential criminal incitement charges against Trump, his son Donald Trump Jr. and attorney Rudy Giuliani.
Any such prosecutions would confront courts with questions the appellate panel faced Tuesday — in particular, where to draw the line between free speech and inciting criminal violence.
“Whether such glorifications of violence rise to incitement is a perpetually difficult question for First Amendment law,” said Stanford Law Professor Nate Persily. “To constitute incitement, the speech must be directed to inciting imminent lawless action and be likely to produce such action.”
But he said courts have ruled that a public agency, such as a police department, “can discipline its employees for all kinds of otherwise constitutionally protected speech” that interferes with the agency’s essential functions.
“The line between free speech and criminal incitement is a very murky and debatable one,” said Rory Little, a law professor at UC Hastings in San Francisco. But he said “current events will influence” the linedrawing, and noted that a number of police departments, including Oakland’s, were considering disciplining officers who had advocated or endorsed the Capitol invasion.
Adam Levine, a lawyer for Moser, contended the officer’s case “bears no relation to the president’s incitement of his followers through months of false statements about the election being ‘stolen.’ ”
“This case is only about the fact that police officers have the same First Amendment rights as any other public employees,” Levine said after the ruling.
The appeals court panel offered differing perspectives on current events.
“Our society is in a selfreflective moment about excessive force and abuse of power by those who have taken an oath to protect all citizens equally and uphold the Constitution,” said Lee, whose opinion was joined by Eugene Siler, a judge from the federal appeals court in Cincinnati temporarily assigned to the Ninth Circuit. “But we also live in a time when a careless comment can ruin reputations and crater careers that have been built over a lifetime because of the demand for swift justice, especially on social media.”
Berzon countered that “we are living in a time when, driven by public concern, police departments nationwide are engaged in selfexamination concerning how best to curb the use of excessive force by police officers.”