Phoenix Cop Sues Department To Block Investigation Of Officers' Questionable Social Media Posts
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Free speech doesn't mean speech free of consequences. A person can be fired for saying things their employer doesn't agree with or feels reflects badly on it Things get a little more complicated when the employer is the government, but the end result of the added complexity is generally that government employees have fewer protections for their speech, rather than more. That's a direct side effect of being employed by the government, which gives employees the power to control private citizens' lives through laws, policies, and regulations.A Phoenix cop, whose bigoted social media posts were swept up in the Plain View Project's database, is unhappy that his questionable posts have resulted in him possibly suffering from the consequences of his actions. Sergeant Juan Hernandez of the Phoenix PD believes he shouldn't be disciplined for his posts, which included sharing anti-Muslim content on multiple occasions. Meg O'Connor of the Phoenix New Times has more details."The most common name for a convicted gang rapist in England is... Muhammed," reads a Facebook post once shared by Phoenix Police Sergeant Juan Hernandez.The post was one of 11 made by Hernandez that ended up being published this past June as part of a database of bigoted Facebook posts made by police officers nationwide.[...]Hernandez has shared numerous anti-Muslim memes on Facebook, including posts from conspiracy websites titled "The End of the Christians in the Muslim World" and "Young Christian Girl Repeatedly Raped by 15 Muslims Then Murdered [READ HERE]." Sergeant Hernandez doesn't want to be punished by his employer for these posts. In fact, he doesn't even want to be investigated. His lawsuit [PDF] has been filed mid-investigation in hopes of receiving an injunction blocking him -- and other police officers -- from being investigated for their social media posts. It's somewhat of a class action complaint as well, with Hernandez attempting to sue on behalf of all other members of his union (Arizona Conference of Police and Sheriffs).Hernandez alleges the investigation is improper and suggests (probably correctly) the only reason he's being investigated is because of the Plainview Project's database.Despite the fact that the Facebook posts were online for years, prior to the Plain View Project publication, no one from the Phoenix Police Department or the City of Phoenix ever identified Plaintiff Hernandez’s postings as alleged violations of any PPD or Phoenix policy. If he's correct, it says more about the Phoenix PD's inability or unwillingness to keep tabs on its officers' social media posts than it does about the alleged impropriety of the investigation. Like many other law enforcement agencies around the nation, the Phoenix PD appears to have been caught off guard by its officers' online behavior. This doesn't necessarily make the investigation improper. It just makes it extremely belated.As the lawsuit notes, the PD claims the posts "brought discredit" to the agency and it was for this reason -- not the PD's social media policy -- that it was seeking to punish him. Hernandez claims he's been an exemplary officer -- something backed up by the PD's inability to specify any other time where he failed to be a good cop.Defendant Disotell and other PSB personnel present at the investigative review process meeting were unable to provide any examples of any situations in which Plaintiff Hernandez acted without “moral integrity” or failed to “work cooperatively, courteously, but firmly with all segments of the public” (quotations from the discipline investigation) other than the Facebook posts that were the focus of the investigation. This is another failure by the Phoenix PD. Meg O' Connor of the New Times appears to know more about Sergeant Hernandez than the PD's investigators.As Phoenix New Times previously reported, Hernandez was added to the Maricopa County Attorney's Brady list back in 2004 (the Brady list is a list of police officers who are so notoriously unreliable and dishonest that prosecutors must disclose the officer's reputation to defense lawyers). Hernandez claims the PD's social media policy is impermissibly vague. It may be, but it does appear to clearly state that officers will be held responsible for any speech the department considers improper.When using social media, Department personnel should be mindful their speech becomes part of the worldwide electronic domain. Therefore, adherence to City and Department policies is required in the personal use of social media. Employees are prohibited from using social media in a manner that would cause embarrassment to or discredit the Department in any way. "Embarrassment" is an incredibly vague term, one that could be used to punish critics and whistleblowers, as well as cops who engage in hateful speech. This part is a bit more specific, but still remains pretty vague.Department personnel are free to express themselves as private citizens on social media sites to the degree that their speech does not impair working relationships of this Department, are detrimental to the mission and functions of the Department, that undermine respect or public confidence in the Department, cause embarrassment to the Department or City, discredit the Department or City, or undermine the goals and mission of the Department or City. The policies are problematic. And Sergeant Hernandez -- Brady list member and incautious social media user -- may ultimately prevail. He's asking for a restraining order preventing the Phoenix PD from continuing its investigations of officers found in the Plain View Project's database. He has a good chance of securing this.While free speech protections are more narrow for public employees, they're not completely erased. A bigoted cop's Facebook posts are protected speech. Even with the social media policy applied, they're likely still protected from the department's attempt to punish him. Vague wording generally tends to result in findings of unconstitutionality, and a policy that would similarly prevent good cops from criticizing government agencies and policies won't hold up under judicial scrutiny.This doesn't mean cops should be allowed to harm the department's relationship with the public by engaging in hateful behavior online. It just means the department will have to be far more specific about what sort of online behavior it won't tolerate. Matters of public concern are pretty much off limits, and the Phoenix PD might have a hard time convincing the court Hernandez's posts weren't at least somewhat related to topics of national debate like immigration and international terrorism.I don't like to defend bad cops but I'm far more averse to policies that threaten free speech protections. The public can draw its own conclusions about Sergeant Hernandez's character from the content he chooses to share. But can he be punished or fired for it? That's not nearly as certain. If the Phoenix PD doesn't want to be the employer of bigots, perhaps it should start firing cops when they're deemed too untrustworthy to testify in court, rather than offer up an internally-incoherent response to a negative news cycle.
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posted at: 12:00am on 24-Oct-2019
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McDonald's Bullies Local Canadian Burger Joint Over 'Filet O' Fish' Trademark
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It is perhaps a bit surprising that we don't have an absolute ton of stories about fast-food giant McDonald's here, given the sheer size and fame of the company. In fact, the last post we did about the company was in the wake of it having just lost its "Big Mac" trademark in the EU, a circumstance the company was obviously displeased with. Still, McDonald's has certainly not been shy about protecting its IP in the past, even occasionally to extreme lengths.The most recent example of this behavior concerns McDonald's bullying a local Canadian food joint over its "Effing Filet 'O Fish" sandwich.Paul Shufelt, the owner and chef behind the local Woodshed Burgers restaurant, wasn’t loving what he saw when he opened his email on Wednesday. In his inbox was a formal cease and desist from McDonald’s Restaurants of Canada over one of his restaurant’s burgers: the Effing Filet O’ Fish. The name of the burger, the letter argued, violated the registered McDonald’s trademark of the phrase Filet O’ Fish, the name of one of the fast food giant’s most prolific sandwiches.“McDonald’s is concerned that your restaurant’s use of Effing Filet O’ Fish, particularly in association with a sandwich or burger menu item, is likely to cause confusion among consumers and is also likely to diminish and dilute the strength of McDonald’s trademark,” the letter read. Okay, so a couple of things here. First, Woodshed is a tiny 40 seat joint that is a local eatery and isn't the kind of place one goes and is confused into thinking it's a McDonald's. Second, the "Effing Filet 'O Fish" sandwich at Woodshed is a fairly descriptive name, given that it's a sandwich chiefly comprised of an effing filet of fish. That point isn't quite so strong, since McDonald's can probably argue that it's use of the mark has transformed it from something generic to something closely associated with McDonald's.But thirdly, if McDonald's thought this was going to get Shufelt to change the name to something McDonald's would consider innocuous, well...In compliance with the cease and desist, Shufelt renamed his burger to the McEffing Fish Filet — his flippant way of complying with the massive company’s cease and desist.“Let them come at us, I guess, and they can have a pissing match with a small, 40-seat restaurant in Edmonton over the name of a burger,” Shufelt said. Great job, McDonald's lawyers. This is important work you're doing.
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