During the tumultuous cancel-culture summer of 2020, police officer George Forbush publicly vented his anger about the beating a person suffered at a Black Lives Matter (BLM) march. After watching video of the disturbing incident on Twitter, the 19-year veteran of the Sparks (Nevada) Police Department tweeted this off-duty response from his personal account: “I have six AR-15 rifles. I always thought having an AR-15 or AK-47 pistol was pointless because of a lack of shouldering but now I’m going to build a couple AR pistols just for BLM, Antifa or active shooters who cross my path and can’t maintain social distancing.”

That tweet and three others––one expressed his desire to “throw a lot of gasoline in [the] direction” of protestors shown in a video holding lighters while unsuccessfully attempting to burn an American flag––led to Forbush’s four-day, unpaid suspension. He filed a federal civil-rights lawsuit in April 2021 asserting that the City of Sparks and several local officials had unconstitutionally retaliated against him for exercising his First Amendment right of free expression. Last month, nearly three years later, the Reno Gazette Journal reported that the now-retired Forbush “won a $525,000 settlement plus a lifetime health insurance stipend after the Sparks City Council gave unanimous approval to the deal.” A federal district court earlier refused to dismiss his case, and an appellate court in 2023 affirmed the lower court’s denial of the defendants’ motion to compel arbitration.

Central to Forbush’s complaint was the assertion that he was punished for “expressing his opinions, as a private citizen, while off-duty, on his personal social media accounts, about matters of public concern.” According to the complaint, a disciplinary investigation conducted by the City of Sparks confirmed he “made all the Twitter posts while off-duty, on his own time, as a private citizen.” The investigation also concluded that Forbush’s tweets reflected his “steadfast political beliefs and were not associated to the Sparks Police Department in any way.” 

There are two key lessons here. The first is that fighting for free-speech rights in the face of today’s censorial government impulses is vital. The second lesson is that public employees do not completely surrender their First Amendment rights when they sign up for government work. Four US Supreme Court rulings make that clear––Pickering v. Board of Education, Connick v. Myers, Garcetti v. Ceballos, and Lane v. Franks.

The principle derived from these cases is that when public employees speak as private citizens about matters of public concern, their First Amendment rights can only be squelched if the government proves that the “speech restrictions . . . are necessary for their employers to operate efficiently and effectively.” Public employees act as private citizens when they aren’t speaking “pursuant to their professional duties,” while a matter of public concern is broadly defined as “a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public at the time of publication.” 

Thus, when Forbush tweeted while off duty at home about matters like burning an American flag in political protest and violence during a BLM march, he was presumptively protected by the First Amendment. His viewpoints may have offended some people (including, apparently, the person who anonymously complained online to the City of Sparks about Forbush’s BLM post), but giving offense doesn’t justify censorship. As the Court wrote in a decision that––appropriately enough––protected flag burning as symbolic political expression, “a bedrock principle underlying the First Amendment” holds “that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” The burden, instead, was on the defendants to demonstrate some evidence that Forbush’s tweets would disrupt the efficiency of the police department or Forbush in carrying out their public duties or impair “harmony among coworkers.” They chose to settle.

Caleb Mason, an attorney representing Forbush, explained in email correspondence that “public employers’ violation of their employees’ off-duty First Amendment rights is a pervasive problem, and there are not nearly enough attorneys taking on these cases.” He added that the harm suffered extends far beyond that of a targeted employee:

“When public agencies discipline or fire employees for their off-duty speech as citizens, it has a powerful chilling effect on all the other employees, who then limit their participation in democracy and public debate for fear of being punished on the job. The only way to protect the rights of all public employees—teachers, firefighters, police, nurses, clerks, and social workers alike—is to assert those rights in court, and hold public employers accountable for ignoring them.”

Although it’s unfortunate, lawsuits sometimes are necessary.  Forbush’s case illustrates their value. In sum, public employees’ off-duty, online speech rights regarding public matters aren’t absolute, but they shouldn’t be easily silenced.

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