By John V. Berry, Esq., www.berrylegal.com
In the wake of numerous recent First Amendment retaliation lawsuits by law enforcement officers, in conjunction with the increasingly common use of social media, I thought it would make sense to put together a synopsis of where we are as of 2017 with regards to the right of police officers and First Amendment speech. As police officers are aware, they are always held to a higher standard than all other types of employees. Making statements through social media is no different. With the technology and social media of today, new areas of case law for law enforcement officers are being developed and new court scrutiny is being applied. Social media usage is just the latest First Amendment arena for law enforcement officers.
The First Amendment Applies to Law Enforcement Officers
The First Amendment is rather short, and provides the following rights:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
The First Amendment protects individuals from government suppression of free speech, but not from other private individuals and/or companies who take action as a result of speech. For police officers, they are employed by government agencies, whether they are local, state or federal employers. As a result, they have been found to have First Amendment rights in their speech, depending on the facts and circumstances in each case. This most often comes up with a law enforcement officer makes a statement or posting on social media which offends a supervisor, police chief or sheriff.
First Amendment History for Police Officers
The issue of the application of the First Amendment to police officer work really first began to arise in 1892, when Justice Holmes, in a famous quote involving the termination of a police officer for engaging in politics, stated: “The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.” McAuliffe v. Mayor of New Bedford, 155 Mass. 216, 220, 29 N.E. 517 (1892). This, however, does not tell the whole story for police officer free speech, nor does it foresee some of the cases that have come later.
The centerpiece of First Amendment protections for police officers, came in 1968, in the case of Pickering v. Board of Educ., 391 U.S. 563, 568 (1968). In Pickering, the Court held that in order for a law enforcement officer to have protected free speech, their speech or statement must be a “matter of public concern.” A court will decide, on a case by case basis whether or not a law enforcement officer’s statement or speech are a matter of public concern. The courts have stated ”public employees do not surrender all their First Amendment rights by reason of their employment." Garcetti v. Ceballos, 547 U.S. 410, 417 (2006). Instead, police officers retain the right in certain circumstances to speak as a citizen addressing matters of public concern. Courts therefore must decide whether an official spoke as a citizen, and thus had First Amendment rights to exercise, or whether the officer spoke in his or her capacity as a public employee, and therefore did not. The more public an issue is, the more protected it may be.
In Pickering, the Court held that a school district had violated a teacher's right to free speech when it terminated the teacher for writing a letter to a local newspaper criticizing the school board's handling of a tax proposal. The Pickering Court had noted that the statements in the letter were not "directed towards any person with whom [the teacher] would normally be in contact in the course of his daily work." Additionally, publication of the letter did not impede the teacher's performance of their regular duties in the classroom or otherwise interfere with the regular operation of the schools generally. The Pickering court held that because the school district had no greater interest in limiting the teacher's speech than it did in limiting a similar contribution by any member of the general public, the teacher spoke as a private citizen, and the speech itself could not provide a basis for the teacher's dismissal from public employment. Pickering provided the framework for evaluating freedom of speech cases for law enforcement officers.
Balance of Speech and the Efficiency of the Workplace
After a court evaluates whether or not a police officer has expressed a matter of public concern, it must then evaluate that right versus the government’s interest in providing public services. As the Garcetti court noted, "a government entity has broader discretion to restrict speech when it acts in its employer, but the restrictions it imposes must be directed at speech that has some potential to affect its operations." Id. at 411. The Garcetti and other courts have held that they need to balance the interests of the public 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. In balancing the interests on each side, a court "must consider not only the employees' interest in speaking but also "the importance of promoting the public's interest in receiving the well-informed views of government employees engaging in civic discussion." Garcetti, 547 U.S. at 419.
Speech Which May Be Protected
Speech, statements or social media postings by law enforcement officers may be potentially protected if the involve criticism of a department, chief of police or sheriff. Beach v. City of Oloathe, 185 F.Supp.2d 1229 (D. Kan. 2002). Other areas where police officers may have stronger cases for First Amendment protection involve discussions or criticism of a police department’s policies, budgets or strategies. Additionally, law enforcement officer speech involving the Justice system as a whole may be subject to a higher degree of protection. A list of some areas given stronger First Amendment protection include:
1. Criticism of police leadership;
2. Criticism of police policies or practices;
3. Criticism of police budgets or strategies;
4. Statements about Department morale; and
5. Discussion or statements about discrimination or whistleblowing
Each case is different, so it is important to consult with an attorney to see the level of protection offered by speech or if disciplinary action results due to such speech.
More Recent Cases
Given the development of Facebook, Twitter and other social media there have been new court cases that have developed. We have seen court cases involving officers who have been proposed for discipline as a result of their Facebook postings. Social media has redefined law enforcement officer First Amendment rights. The cases and rulings have varied somewhat by jurisdiction, with some courts more willing to permit First Amendment cases and some not.
Some new cases to consider:
Moonin v. Tice, 2017 U.S. App. Lexis 15956 (9th Cir. Aug. 22, 2017) (A broad directive by a state police department prohibiting troopers from communicating with any member of the public concerning the management of the canine drug detection unit violated a trooper's freedom of speech since the directive regulated speech outside the trooper's official duties on a matter of public concern, and no potential disruption of department operations was shown);
Drake v. Town of New Boston, 2017 U.S. Dist. LEXIS 86319 (D. NH. June 6, 2017) (In light of police officer plaintiff’s repeated allegations that she was fulfilling her duties as a police officer by reporting misconduct to her superior officers, the court could not find that those statements were not made pursuant to her professional responsibilities as a police officer. As a result, the court dismissed the First Amendment complaint by the officer because she could not show that her reports to her superior officers were made in her capacity as a private citizen);
Liverman v. City of Petersburg, 844 F.3d 400 (4th Cir. Dec. 15, 2016) (Court of Appeals held that that a police department social media policy which made public comments that could be deemed unfavorable to the police department was overbroad and thus violated the First Amendment);
Hamm v. Williams, N.D. Ohio, Case No. 1:15CV273 (Sept. 29, 2016) (a police officer who posted on Facebook his support of six fellow law enforcement officers who had been indicted on charges of shooting unarmed suspects to be protected First Amendment speech); and
Graziosi v. City of Greenville, 775 F.3d 731 (5th Cir. Jan. 9, 2015) (veteran police officer’s statement on Facebook about her police department’s decision not to send officers to attend the funeral of an officer killed in the line-of-duty in another community was not protected speech under the First Amendment because her speech did not address a matter of public concern, but instead, involved a dispute over an intra-departmental decision since her displeasure with the chief's decision was the primary reason she made her posts).
There are far too many recent cases to post here, but the point is that the number of cases based on social media comments by law enforcement officers are increasing and this area of the law is bound to be clarified further in the short-term future.
It is important for a law enforcement officer to understand the legal issues they face involving protected First Amendment speech. Our law firm advises and represents law enforcement officers in disciplinary and civil matters. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070. The Firm's Facebook page can be found here and our Facebook page can be found here.