©2012 Jack Ryan, Attorney, PATC Legal & Liability Risk Management Institute (www.llrmi.com)
An area which raises a great many questions among law enforcement supervisors and administrators is how far may a department go when restricting, through policies, an officer’s use of social media, and under what circumstances can a department discipline an officer without violating the officer’s First Amendment Right of free speech.
There is a basic framework for analyzing any public employee’s claim of first amendment protection with respect to freedom of speech.
The right of public employees to engage in speech on matters of public concern without fear of retaliation is clearly established. [i] The determination as to whether speech pertains to a matter of public concern must be determined by the content, form, and context of a given statement. [ii] The “ultimate issue of whether speech is protected is a question of law, not fact.” [iii] If it is determined that the speech is “of public concern” then a second inquiry must be undertaken to determine if an employee may be sanctioned for the speech.
Once it is determined that an employee’s speech relates to a matter of public concern an inquiry is undertaken to “balance the employee’s interest in making the statement against `the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees. [iv] It should be noted that an employee’s position in a labor organization does not appear to give any heightened protection under the First Amendment but may establish some protection under state and federal labor laws designed to protect unions in labor disputes. [v] In Broderick the United States District Court of Massachusetts asserted: “While Broderick has a right to disagree with his employer, belong to a union and use the courts and other dispute resolving forums to further and safeguard his rights, the First Amendment does not afford him special protection as a public employee for these activities.” [vi]
The pertinent considerations concerning the departments’ interests are: “whether the statement impairs discipline by superiors or harmony among co-workers, has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, or impedes the performance of the speaker’s duties or interferes with the regular operation of the enterprise. [vii] The State interest element focuses on the effective functioning of the public employer’s enterprise. “Interference with work, personnel relationships, or the speaker’s job performance can detract from the public employer’s function; avoiding such interference can be a strong state interest.” [viii]
The United States Supreme Court has recognized that government entities have a “freer hand” in regulating the speech of its employees than it does in regulating the speech of citizens when acting as a sovereign. [ix] It was also asserted that the Court gives greater deference “to government predictions of harm used to justify restrictions of employee’s speech than to predictions of harm used to justify restrictions on the speech of the public at large.” [x] The Court asserted in Churchill:
But we have given substantial weight to government employer’s reasonable predictions of disruption, even when the speech involved is on a matter of public concern, and even though when the government is acting as sovereign our review of legislative predictions of harm is considerably less deferential. [xi]
The Court pointed out that the First Amendment does have a role in these employment decisions:
Government employees are often in the best position to know what ails the agencies for which they work; public debate may gain much from their INFORMED (emphasis added) opinions…Rather the extra power the government has in this area comes from the nature of the government’s mission as an employer…When someone who is paid a salary so that she will contribute to an agency’s effective operation begins to do or say things that detract from the agency’s effective operation, the government employer must have some power to restrain her.
The Court concluded:
The key to First Amendment analysis of government employment decisions, then, is this: The government’s interest in achieving its goals as effectively and efficiently as possible is elevated from a relatively subordinate interest when it acts as sovereign to a significant one when it acts as employer. The government cannot restrict the speech of the public at large in the name of efficiency. But where the government is employing someone for the very purpose of effectively achieving its goals, such restrictions may well be appropriate.
As a result of the foregoing it is clear that police officers, as government employees, can be restricted in their speech. One must examine officers’ statements on a case by case basis and determine the following:
Is the officer speaking on a matter of public concern?
If the statement is not a matter of “public concern” it is not protected by the First Amendment with respect to employment
If the statement is one of “public concern” then the department must examine the statement and make a reasonable determination if the statement may lead to “disruption” in the workplace. If the statement may lead to disruption in the workplace then the employee may be disciplined.
Social Media and First Amendment Rights
In determining whether or not it is appropriate to discipline a public employee for social media postings, law enforcement supervisors and managers must apply the framework set forth by the United States Supreme Court to determine if the social networking speech is protected by the First Amendment or some other provision of law.
First Amendment Application
A 2011 case from the United States District Court for the Northern District of Georgia provides an example of how a court may apply First Amendment analysis to a case where an officer is disciplined based on Facebook postings. InGresham v. City of Atlanta, [xii] the federal trial court reviewed the officer’s lawsuit based on the discipline. A magistrate reviewing the case had made recommendations favorable to the officer. The trial court issued written findings rejecting these recommendations:
Plaintiff is a City of Atlanta police officer in the Atlanta Police Department ("APD"). In August of 2009, Plaintiff was on the list of officers eligible for promotion to an investigative position, where she ranked number twenty. In the spring of 2010, promotions were made to investigative positions, but Plaintiff was not promoted. It is un-disputed that Plaintiff was not promoted be-cause she had an open complaint against her with the Office of Professional Standards ("OPS") regarding an incident discussed below.
The Arrest
In December of 2009, before any promotions to investigator from the list of eligibles were made, Plaintiff arrested an individual named Jeriel Scrubb ("Scrubb"). Plaintiff was told at the time that Scrubb was a nephew of City of Atlanta police investigator Barbara Floyd ("Floyd"). In the arrest report, Plaintiff records that Floyd accompanied Scrubb alone to another room, took money and two cell phones from Scrubb's pockets, and possibly spoke to Scrubb. Plaintiff states that the "transfer of money was witnessed by other . . . investigators."
Defendants admit that Plaintiff arrested an individual named Jeriel Scrubb on December 8, 2009, but object to Plaintiff's identification of Scrubb as Floyd's nephew.
Plaintiff's Response to the Incident
On December 15, 2009, Plaintiff made a "newsfeed" post on her Facebook site, 3 which stated the following:
Who would like to hear the story of how I arrested a forgery perp at Best Buy only to find out later at the precinct that he was the nephew of an Atlanta Police Investigator who stuck her ass in my case and obstructed it?? Not to mention the fact that while he was in my custody, she took him into several other rooms alone before I knew they were related. Who thinks this is unethical?
The court began its analysis by outlining the applicable law as follows:
[In order] to state a claim for retaliation in violation of the First Amendment, Plaintiff, as a government employee, must show that her speech was constitutionally protected and that the speech was a substantial or motivating factor in Defendants' decision not to select her from the list of employees eligible for promotion to an investigative position. Whether Plaintiff has made this showing is governed by the four-part Pickering analysis, under which the Court must find that (1) Plaintiff's speech involved a matter of public concern; (2) Plaintiff's interest in speaking outweighed the government's legitimate interest in efficient public service; and (3) the speech played a substantial part in the government's challenged employment decision. If the employee can make the above showing, the burden shifts to the government to show that (4) it would have made the same employment decision even in the absence of the protected speech. The first two prongs of this test are questions of law while the latter two are questions of fact. In light of the Court's conclusions presented below, only the first two prongs of this test must be considered. [cites omitted].
The court in applying the law began by reviewing whether the officer spoke as a citizen on a matter of public concern. The court wrote:
The Court accepts the conclusion of the Report and Recommendation that Plaintiff's speech in this case was entitled to constitutional protection as speech of a citizen related to a matter of public concern. The government as employer has a stronger interest in regulating the speech of its employees than in regulating the speech of the citizenry in general. Nonetheless, it is well-settled that "[a] public employee does not relinquish First Amendment rights to comment on matters of public interest by virtue of government employment." Accordingly, the First Amendment protects government employee speech if the employee speaks "as a citizen upon matters of public concern." If, on the other hand, the employee speaks "as an employee upon matters only of personal interest," the speech is not entitled to constitutional protection. An employee's speech concerns a matter of public concern if it can be "fairly considered as relating to any matter of political, social, or other concern to the community”… The Magistrate Judge concluded that Plaintiff's Facebook posting addressed a matter of public concern, specifically, "the integrity of the law enforcement services" provided to the public by the Atlanta Police Department (APD). Although the Court considers this a close question, the Court accepts the Magistrate Judge's conclusion that Plaintiff's speech did pertain to an issue of public concern and thus is entitled to First Amendment protection.
The court then moved to the second issue: did the officer’s interest in speaking on this matter of public concern, outweigh the police department’s countervailing interests?
On this second prong the court wrote:
Under the second prong of the Pickering analysis, the Court must weigh Plaintiff's First Amendmentinterests against Defendant's interest "as an employer, in promoting the efficiency of the public services it performs through its employees." This balancing test reflects the fact that government employers must be given "wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the First Amendment," and must be permitted to "take action against employees who engage in speech that 'may unreasonably disrupt the efficient conduct of government operations,'"
The government's interest in efficient public service is particularly acute in the context of police departments, which "have more specialized concerns than a normal government office." Indeed, the Supreme Court has noted a particular "need for discipline, esprit de corps, and uniformity" within the police force. [xiii] The Eleventh Circuit has likewise recognized the unique needs of police departments, noting, "Order and morale are critical to successful police work: a police department is a 'paramilitary organization, with a need to secure discipline, mutual respect, trust and particular efficiency among the ranks due to its status as a quasi-military entity different from other public employers.'" Several factors must be considered in determining whether the government's legitimate interest in efficient public service outweighs the government employee's interest in protected freedom of speech. In particular, courts must assess "'(1) whether the speech at issue impedes the government's ability to perform its duties efficiently, (2) the manner, time and place of the speech, and (3) the context within which the speech was made.’ [cites omitted]
The Court finds that the Report and Recommendation failed to give sufficient consideration to the [Police Department’s] interests in conducting the Pickering balancing test. In its submissions to the Court, Defendant argued that Plaintiff's speech violated APD Standard Operating Procedure (SOP) Work Rule 4.1.06, Criticism, which provides:
‘Employees will not publicly criticize any employee or any order, action, or policy of the Department except as officially required. Criticism, when required, will be directed only through official Department channels, to correct any deficiency, and will not be used to the disadvantage of the reputation or operation of the Department or any employees.’
In rejecting the magistrate’s recommendations the court analyzed as follows:
First, as the Supreme Court stated in Connick: When close working relationships are essential to fulfilling public responsibilities, a wide degree of deference to the employer's judgment is appropriate. Furthermore, we do not see the necessity for an employer to allow events to unfold to the extent that the disruption of the office and the destruction of working relationships is manifest before taking action.
Thus, the fact that Defendants have not come forward with specific evidence of workplace disruption is not fatal to their argument. Defendants should not be required to allow employee speech to completely erode the loyalty and discipline of the police force before they can take action against such speech.
Consistent with prior holdings the court noted the need for even greater latitude to control speech by law enforcement agencies in citing prior cases where it was held:
In this regard, appellee's case is strengthened by the fact that the [police department] is a quasi-military organization. In quasi-military organizations such as law enforcement agencies, comments concerning coworkers' performance of their duties and superior officers' integrity can directly interfere with the confidentiality, esprit de corps and efficient operation of the police department. The court continued:
Discipline is a necessary component of a smoothly-operating police force. Although this necessity of discipline does not rise to the same level as required by the military, discipline must be maintained among police officers during periods of active duty. . . . We agree that courts should consider and give weight to the need for maintaining a close working relationship in quasi-military organizations like police departments.
In this case, Defendants have the same interest as the appellees in Busby in maintaining solidarity, order, and discipline within the police force, and in maintaining public trust and confidence in its capabilities. Plaintiff's Facebook comments threaten these interests by imputing to the police force nepotism or corruption and by, more generally, weakening the public appearance of the police force as a unified "force." Instead, Plaintiff's comments portray the police force as riddled with infighting, insubordination, and dysfunction. These are the very dangers recognized by the Eleventh Circuit in Busby that courts must guard against when considering a police department's interests in limiting employee speech critical of the department's internal affairs.
On the other side of the scale, the Court recognizes Plaintiff's First Amendment interest in speaking out against what she perceives to be unethical conduct within the police force. Indeed, the Court believes that the ability of the citizenry to expose public corruption is one of the most important interests safeguarded by the First Amendment.
As for the form of Plaintiff's speech, Plaintiff, it appears, did not present her grievances to superiors or any other persons in a position to change police department policy or sanction employees; she did not prepare any documentation, such as a formal complaint, specifically articulating the alleged misconduct; nor did she seek to expose the alleged misconduct to the public, generally, such as through radio, television, newspapers, or even a meeting at City Hall. Instead, Plaintiff chose to address the alleged misconduct through a "newsfeed" post on her personal profile of the social networking website, Facebook. While this choice of forum certainly does not exempt her speech fromFirst Amendment protection, which extends to all forms of protected speech, it does suggest that her interest in making the speech is less significant than if she had chosen a more public vehicle, calculated to lead to serious public scrutiny of the APD's internal affairs…[T]he Court is not convinced that Plaintiff was truly crying out to the public about police department misconduct, as opposed to venting frustration with a superior. Although Plaintiff's speech does allege "unethical" misconduct, it does so only loosely, in a non-specific and largely rhetorical fashion.
It should be noted that when an officer makes a statement:
[P]ursuant to their official duties, the employees are not speaking as citizens for First Amendmentpurposes, and the Constitution does not insulate their communications from employer discipline… In the Garcetti case, the Supreme Court held that a deputy district attorney was not entitled to First Amendment protection from retaliatory discipline for views that he had expressed in work-related memoranda questioning the credibility of an officer-affiant, views that he had then repeated when called to testify at a court proceeding. The Court, in effect, carved out a First Amendment exception for work-related speech. "[W]hen public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline. [xiv]
It should also be noted that there have been decisions from the National Labor Relation Board criticizing and overturning discipline related to social networking posts. Two significant items should be recognized. First, the National Labor Relations Act specifically excludes government entities from its definition of employers due to the fact that the act was passed to assist employees of private entities in forming unions and participating in collective bargaining. The current decisions of the NLRB have no application to public entities such as police departments. While such decisions may be instructive they largely rest on discipline which would impair an employee’s ability to collectively bargain or speak to others on working conditions.
The United States Supreme Court has reviewed a law enforcement case which involved the termination of an officer for his use of the internet while off-duty. [xv] The Court described the facts in San Diego v. Roe, as follows:
Respondent John Roe, a San Diego police officer, made a video showing himself stripping off a police uniform and masturbating. He sold the video on the adults-only section of eBay, the popular online auction site. His username was "Code3stud@aol.com," a wordplay on a high priority police radio call. The uniform apparently was not the specific uniform worn by the San Diego police, but it was clearly identifiable as a police uniform. Roe also sold custom videos, as well as police equipment, including official uniforms of the San Diego Police Department (SDPD), and various other items such as men's underwear. Roe's eBay user profile identified him as employed in the field of law enforcement.
Roe's supervisor, a police sergeant, discovered Roe's activities when, while on eBay, he came across an official SDPD police uniform for sale offered by an individual with the username "Code3stud@aol.com." He searched for other items Code3stud offered and discovered listings for Roe's videos depicting the objectionable material. Recognizing Roe's picture, the sergeant printed images of certain of Roe's offerings and shared them with others in Roe's chain of command, including a police captain. The captain notified the SDPD's internal affairs department, which began an investigation. In response to a request by an undercover officer, Roe produced a custom video. It showed Roe, again in police uniform, issuing a traffic citation but revoking it after undoing the uniform and masturbating.
The investigation revealed that Roe's conduct violated specific SDPD policies, including conduct unbecoming of an officer, outside employment, and immoral conduct. When confronted, Roe admitted to selling the videos and police paraphernalia. The SDPD ordered Roe to "cease displaying, manufacturing, distributing or selling any sexually explicit materials or engaging in any similar behaviors, via the internet, U.S. Mail, commercial vendors or distributors, or any other medium available to the public. Although Roe removed some of the items he had offered for sale, he did not change his seller's profile, which described the first two videos he had produced and listed their prices as well as the prices for custom videos. After discovering Roe's failure to follow its orders, the SDPD--citing Roe for the added violation of disobedience of lawful orders--began termination proceedings. The proceedings resulted in Roe's dismissal from the police force. [cites omitted]
In analyzing the case the Court distinguished public employees from the general public as follows:
A government employee does not relinquish all First Amendment rights otherwise enjoyed by citizens just by reason of his or her employment. On the other hand, a governmental employer may impose certain restraints on the speech of its employees, restraints that would be unconstitutional if applied to the general public. The Court has recognized the right of employees to speak on matters of public concern, typically matters concerning government policies that are of interest to the public at large, a subject on which public employees are uniquely qualified to comment. Outside of this category, the Court has held that when government employees speak or write on their own time on topics unrelated to their employment, the speech can have First Amendment protection, absent some governmental justification "far stronger than mere speculation" in regulating it. We have little difficulty in concluding that the City was not barred from terminating Roe under either line of cases…
To reconcile the employee's right to engage in speech and the government employer's right to protect its own legitimate interests in performing its mission, the Pickering Court adopted a balancing test. It requires a court evaluating restraints on a public employee's speech 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’…Pickering did not hold that any and all statements by a public employee are entitled to balancing. To require Pickering balancing in every case where speech by a public employee is at issue, no matter the content of the speech, could compromise the proper functioning of government offices… This concern prompted the Court in Connick to explain a threshold inquiry (implicit inPickering itself) that in order to merit Pickering balancing, a public employee's speech must touch on a matter of ‘public concern’…Connick held that a public employee's speech is entitled to Pickeringbalancing only when the employee speaks "as a citizen upon matters of public concern" rather than "as an employee upon matters only of personal interest.
The Court then outlined how a court would determine if something was a matter of public concern:
Although the boundaries of the public concern test are not well defined, Connick provides some guidance. It directs courts to examine the "content, form, and context of a given statement, as revealed by the whole record" in assessing whether an employee's speech addresses a matter of public concern. In addition, it notes that the standard for determining whether expression is of public concern is the same standard used to determine whether a common-law action for invasion of privacy is present. That standard is established by our decisions in Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 43 L. Ed. 2d 328, 95 S. Ct. 1029 (1975), and Time, Inc. v. Hill, 385 U.S. 374, 387-388, 17 L. Ed. 2d 456, 87 S. Ct. 534 (1967). These cases make clear that public concern is something that is 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. The Court has also recognized that certain private remarks, such as negative comments about the President of the United States, touch on matters of public concern and should thus be subject to Pickering balancing.
The Court concluded:
Roe's activities did nothing to inform the public about any aspect of the SDPD's functioning or operation. Nor were Roe's activities anything like the private remarks at issue in Rankin, where one co-worker commented to another co-worker on an item of political news. Roe's expression was widely broadcast, linked to his official status as a police officer, and designed to exploit his employer's image.
The speech in question was detrimental to the mission and functions of the employer.
Thus, a supervisor who is faced with a decision regarding discipline for speech including social network postings must first consider whether the speech is on a matter of public concern. If the speech is not on a matter of public concern, it is not protected by the First Amendment.
If the speech is a matter of public concern, the department may still restrict the speech or bring discipline if it can be articulated that the speech, including social networking posts, impairs discipline by superiors or harmony among co-workers, has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, or impedes the performance of the speaker’s duties or interferes with the regular operation of the enterprise.
Note: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.
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CITATIONS:
[i] Rankin v. McPherson, 483 U.S. 378 at 383 (1987).
[ii] Connick v. Myers, 461 U.S. 138 at 147-148 (1983).
[iii] Connick v. Myers, 461 U.S. 138 at 147 n.7. (1983).
[iv] Rankin v.McPherson, 483 U.S. 378 at ___ (citing Pickering v. Board of Education, 391 U.S. 563 ( 1968) andConnick) (1987).
[v] See e.g. Broderick v. Roache, 751 F.Supp. 290 at 293 (D. Mass. 1990).
[vi] Id.
[vii] Id. Citing Pickering.
[viii] Id.
[ix] Waters v. Churchill, 114 S.Ct. 1878 at 1886 et seq. (1994).
[x] Id.
[xi] Id.
[xii] Gresham v. City of Atlanta, 2011 U.S. Dist. LEXIS 113347 (Northern Dist. GA. 2011).
[xiii] Kelley v. Johnson, 425 U.S. 238, 246, 96 S. Ct. 1440, 47 L. Ed. 2d 708 (1976).
[xiv] See e.g. Cardarelli v. MBTA,2010 U.S. Dist. LEXIS 34185 (Dist. Massachusetts 2010) citing Garcetti v. Ceballos,547 U.S. 410 (2006).
[xv] San Diego v. Roe, 543 U.S. 77 (2004).
