Private Facebook Posts and First Amendment Protection

By AYZ Education Law Group

December 19, 2022

Are private Facebook Posts protected in the same way speech made in a traditional public forum is? The United States District Court for the Western District of Pennsylvania recently held that Allegheny County did not violate the First Amendment when it dismissed a 911 dispatcher for comments she made on her private Facebook account. Vallecorsa v. Allegheny County.

The court in Vallecorsa concluded that, “considering the content and context of [the employee’s] speech,” comments made on a private Facebook account warrant only a limited degree of protection, and thus, “the County’s showing of disruption need not be as strong to justify the termination of [her] employment.”

The posts that prompted the dispute occurred on June 24, 2018. Natalie Vallecorsa, a 911 dispatcher, used her private Facebook account to communicate about protests calling for justice for Antwon Rose, a young black man who was shot and killed while fleeing the police after a traffic stop in Pittsburgh. The conversation at issue went as follows:

[Person 1]:     Still trying to figure out where all these protesters were When officer Shaw was killed in new ken…. not a peep tho!!!! 

Ms. Vallecorsa:     It’s a joke. #backtheblue 

[Person 2]:     Honestly why don’t they arrest them all or shut off their food stamp cards…this is seriously ridiculous…if he was innocent then why run 

Ms. Vallecorsa:     Thankkkk you!!! So innocent that he had an empty chamber on him && was doing community service hours for something he did prior! [thoughtful emoji] 

[Person 2]:     Natalie Vallecorsa right! If his ass would’ve stayed planted nobody would’ve been blocking traffic or rioting and this wouldn’t exist…this generation has a lot to learn about what’s right and what’s wrong…the entire country has everything twisted on how to look at things and honestly I’m tired of surrounding myself with such people [sad face emoji] 

Ms. Vallecorsa:     [100 emoji, 100 emoji, 100 emoji] couldn’t agree anymore! 

[Person 2]:     Natalie Vallecorsa the assistance they receive monthly will now pay what the city will be forced to pay from the loss because of rioting…cut their support and the rioting ends [smile face emoji]

Whether the comments were made in her capacity as a private citizen while she was off duty was never in dispute. However, while Vallecorsa’s Facebook account was “private”, another party viewed the post, took a screenshot, and re-posted it, tagging the Allegheny County Emergency Services’ Facebook page with the content.

The backlash outcry was immediate. Vallecorsa’s comments reached a multitude of Facebook users, including her coworkers, direct supervisors, and the Deputy Chief of Emergency Services. Just hours after Vallecorsa’s comments were made public, the Deputy Chief began receiving emails from staff expressing anxiety about working with “racist coworkers.” In addition, members of the public began to question the integrity and capacity of the dispatch center to perform its functions, given the apparent attitudes of its employees. Over the following days, the Department received numerous communications from community members expressing concern, and a threat of a protest at the 911 command center.

The County subsequently held a Loudermill hearing, during which they determined that Vallecorsa’s posts “violated several department policies, stirred public outcry and mistrust in the department, and disrupted and risked further disruption to the dispatch center’s ability to render emergency services to the public.” As a result, the County terminated Vallecorsa’s employment.

Vallecorsa filed suit against Chief Deputy Frazier and the Deputy County Manager—in their capacities as officers for the County— alleging First Amendment retaliation pursuant to 42 U.S.C. § 1983. (She also sued the County under the Monell doctrine for unconstitutional practices and policies in connection with the decision to terminate her employment). The parties filed cross-motions for summary judgment.

The central issue on summary judgment was whether Vallecorsa’s speech was protected by the First Amendment. In analyzing this issue, the court applied the Pickering balancing test, which requires courts to “balance the interests of the employee, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Munroe v. Central Bucks Sch. Dist., 805 F.3d 454, 466 (3rd. Cir. 2015).

The court noted that the content of Vallecorsa’s comments, “viewed in isolation, deserve a high level of protection.” See also Swineford v. Snyder Cnty., 15 F.3d 1258,1274 (3rd. Cir. 1994) (“Speech involving government impropriety occupies the highest rung of First Amendment protection.”). Nevertheless, the Court explained, “content isn’t the only consideration… context matters too.” As to the context of Vallecorsa’s speech, the court differentiated her private Facebook comments from posts made in a public online platform, like the President’s official Twitter feed, a blog, or a website, noting that “this doesn’t suggest that speech on public matters between ‘Facebook friends’ shouldn’t be protected at all, but that, in the Pickering balance, it cannot warrant the type of ‘highest’ rung protection that Ms. Vallecorsa seeks.”

Despite this conclusion, the court applied the second element of the Pickering test under the assumption that Vallecorsa’s speech met the “highest rung” for speech protection. Yet, even under the highest level of First Amendment protection, the court explained, “the evidence of actual disruption here and the nature of the county’s operations support the county’s decision to terminate Ms. Vallecorsa’s employment for her expression.” In reaching its decision, the court noted the critical importance of the fact that Vallecorsa worked in a position requiring intimate collaboration with law enforcement. As such, her employer had a legitimate interest in preventing actual and potential disruptions that could “harm or impede a public-facing emergency services entity that relies on public trust to function effectively.”

So, what does this all mean for public employees, including school district personnel? It seems to establish a novel and more nuanced application of the standards established by the United States Supreme Court addressing public and private speech on matters of public concern. In Pickering v. Board of Education, a high school teacher was dismissed after he sent a letter to the editor criticizing the school board’s handling of past tax revenues raised through bond elections. In determining that the school violated the teacher’s First Amendment free speech rights, the Supreme Court weighed the teacher’s interest in speaking as a citizen on a matter of public concern against the state’s interest as an employer in maintaining harmony and discipline in the workplace. In Givhan v. Western Line Consolidated School District, the Supreme Court held that a public-school teacher’s private speech on a matter of public concern, though subject to First Amendment protection, was not subject to the Pickering analysis. Vallecorsa appears to employ a hybrid analysis whereby private speech on social media, made public, is subject to the Pickering test and afforded less protection than speech made in a traditional public forum (i.e., an online newspaper, public blog, etc.). The result, a public school employee’s speech on private social media accounts may not be afforded a high level of protection under the First Amendment if the speech at issue disrupts the school learning environment.

The Appel, Yost & Zee Education Group will continue to monitor and update clients on these matters as they develop. Should you have any questions about this case or any other First Amendment issues, please do not hesitate to reach out to William J. Zee or any of the attorneys in the Appel, Yost & Zee Education Group.