Police Officer’s Media Statements And Magazine Articles Were Not Protected By First Amendment
Between May 2004 and January 2006, Thomas Nixon, a patrol officer with the Houston, Texas Police Department (“HPD”), wrote a monthly column entitled “The Insider” in 002 Magazine, a local Houston periodical. In such articles, Nixon identified himself as a police officer, discussed his police-related activities, commented on his duties as an officer and HPD policies, and-according to HPD-made “caustic, offensive, and disrespectful” statements regarding certain groups of citizens, including minorities, women, and the homeless.
HPD eventually received a citizen complaint about Nixon's articles. Thereafter, HPD initiated an Internal Affairs investigation to determine if Nixon and his articles violated any HPD policies. The investigation determined that Nixon's activities related to authoring and publishing the articles violated numerous HPD policies and undermined the efficiency of the services provided by HPD. Consequently, HPD temporarily suspended Nixon for fifteen days without pay.
Subsequently, there was a highly publicized high-speed police pursuit involving state and local law enforcement officers, including HPD officers, and a fleeing suspect. After the fleeing suspect had been identified, HPD supervisors ordered all HPD officers to discontinue the pursuit but permitted them to follow at a distance. Nonetheless, the fleeing suspect eventually collided with an innocent motorist. Although Nixon was not involved in the pursuit, he knew about it from local television reports he saw while he was off-duty, at home, and preparing for his shift.
As soon as his shift started, Nixon proceeded to the scene of the accident-even though he was never instructed to do so. Upon arriving, Nixon asked a supervisor if anyone was going to make a statement to the media and suggested that he (Nixon) do so. After the supervisor failed to respond (other than by laughing), Nixon proceeded to speak to the media. Nixon, however, was not designated as an HPD spokesperson and was not authorized to make statements to the media at the scene. In his statement, Nixon criticized HPD's decision to disengage the pursuit and stated he was “embarrassed to be a police officer” because the department did not stop fleeing suspects.
The next day, Nixon continued his criticism of HPD and its pursuit policy by voluntarily calling into multiple radio talk shows and by giving television interviews. In response to these statements, HPD launched an investigation against Nixon. On June 2, 2006, HPD terminated Nixon's employment.
Nixon filed a § 1983 suit for employment retaliation in violation of his First Amendment right to free speech. Specifically, Nixon claimed that his fifteen-day temporary suspension and his later termination from HPD for making various statements during media interviews and in publications he authored violated his First Amendment rights.
The district court granted summery judgment for the city. On appeal, the 5th Circuit affirmed, finding that: (1) Nixon’s speech relating to the accident was made pursuant to his official duties and during the course of performing his job and thus was not protected against retaliation under the First Amendment; and (2) the articles written by Nixon were not protected against retaliation under the First Amendment, even if Nixon was speaking as a citizen on matters of public concern; it was reasonable for the police department to believe that the articles would negatively impact the relationship between the department and citizens.
Nixon v. City of Houston
The 5th Circuit Court of Appeals’ jurisdiction includes Louisiana, Texas and Mississippi.