In 2019, a Philadelphia lawyer and her group of researchers published an online database called “The Plain View Project,” which exposed thousands of questionable social media posts selected from 3,500 verified accounts of current and former law enforcement officers throughout the United States.[1] Public awareness and media reports about the database led to organized protests in some cities, and dozens of officers were investigated for improper content on their personal Facebook accounts.[2] As a result, some departments announced a range of discipline for offending officers, including thirteen that were fired in Philadelphia.[3] Unfortunately, the harm to community relations from the worst examples of such contemptible online activity is incalculable. The fallout from The Plain View Project underscores the importance of sound social media policies in law enforcement agencies.
Although government employees retain free speech rights, special rules protect public employers from speech that disrupts the workplace or impairs service delivery.
Nevertheless, social media policies can be a constitutional minefield for police administrators charged with the potentially tricky balance of maintaining public trust and internal discipline while respecting their employees’ First Amendment rights. This article explores the boundaries of protected government employee speech and identifies best practices for drafting and enforcing social media policies in law enforcement agencies.
I. Government employees have a right to comment publicly as citizens on “matters of public concern.”
Public employees, including law enforcement officers, have the explicit right to comment publicly as citizens on “matters of public concern.”[4] Matters of public concern are issues of social or political significance or other community topics, especially subject matter of legitimate news interest. Examples of such protected speech include discourse about the quality of government services, misconduct in office, mismanagement of public funds, or other significant breaches of public trust. Generally, statements that do not interfere with the employee’s duties or the department’s internal operations enjoy the same protections as speech by the general public. Additionally, off-duty employee political activities are protected as long as they do not disrupt the workplace.[5]
II. Speech strictly about an employer’s internal operations, or that impairs efficiency or disrupts the workplace is not protected.
Speech that strictly relates to an employer’s internal operations is not a matter of public concern.[6] Moreover, statements that are intentionally false, defamatory, or damaging to the employer’s efficiency or workplace harmony are not protected. Unfortunately, the line is occasionally blurred between mere internal operations commentary and matters of public concern. If the speech at issue is at least partially protected, courts apply a balancing test to determine if an employee’s interest in commenting on matters of public concern outweighs their employer’s interest in maintaining a harmonious and efficient workplace. The standards of proof for an employer to demonstrate workplace disruption may vary by federal circuit.[7]
III. Speech required by job duties is not protected, but supplying truthful, job-related testimony is First Amendment speech.
The First Amendment does not protect speech required by job duties.[8] Therefore, content in official reports, internal memoranda, or other job-related correspondence is generally not considered protected speech. However, the First Amendment does protect truthful, subpoenaed, job-related testimony offered outside of an employee’s ordinary job duties. Thus, employees are constitutionally protected from disciplinary action for supplying accurate statements, under oath, about matters pertaining to, but not necessarily required by, their job duties.[9]
IV. Agencies should train its employees on the consequences of misusing social media.
Finally, and most importantly, employees should receive social media training because inappropriate online content could literally ruin their career. For example, evidence of bias or animus obtained from a personal social media account can be considered Brady material that, in the worst instances, could irreparably impeach an employee’s credibility as a witness.[10] The Plain View Project is an excellent case study to deliver this message.
V. Although First Amendment issues are complex, some best practices have emerged from federal litigation.
Indeed, distinguishing between protected speech and inappropriate social media content is sometimes difficult. However, some best practices have emerged from the last fifty years of government employee First Amendment litigation. The following suggestions are not intended as legal advice, and it is imperative that police administrators confer with local counsel before implementing or enforcing social media policies. That being said, here are some general policy principles to consider:
- All employees should receive training on appropriate social media use and the potential consequences of misuse.
- Agency policies should be drafted carefully to not restrict protected speech.
- Policies may properly regulate the agency’s own social media accounts, as well as personal content strictly about internal department operations.
- Employees may be disciplined for material that impairs the agency’s effectiveness or disrupts the workplace, excluding significant matters of public concern.
- Posts that breach official confidentiality are actionable.
- Content that is racist or that projects bias or animus should be prohibited.
- Posts that are harassing or defamatory are also actionable.
- The agency may restrict on-duty activities and prohibit personal use of city logos, trademarks, uniforms, and equipment.
- Always confer with legal counsel before contemplating disciplinary action for employee speech!
VI. Conclusion
Administrators should provide social media training to employees and implement carefully drafted policies to regulate online activities. Although employees retain rights to participate in off-duty political activities and to comment on matters of public concern, speech that is strictly about internal operations or that impairs service delivery or disrupts workplace harmony is not protected. Speech required by job duties is not protected, but truthful, job-related testimony is considered First Amendment speech. First Amendment issues are often complex, but policy guidance is available from fifty years of federal litigation. Always confer with legal counsel before implementing a social media policy or contemplating disciplinary action for an employee’s social media content.
*J.D., Texas Wesleyan University School of Law, B.S., Florida State University. Brian is a law enforcement instructor, licensed Texas attorney, and assistant police chief in a large municipal police department in the Dallas-Fort Worth area.
[1] plainviewproject.org, https://www.plainviewproject.org/ (last visited April 5, 2020).
[2] P.R. Lockhart, Police posted thousands of offensive memes on Facebook. Now some of them are being fired. Vox, July 19, 2019, https://www.vox.com/identities/2019/7/19/20701048/police-officer-facebook-racism-philadelphia-plain-view-project.
[3] Id.
[4] Pickering v. Bd. of Educ., 391 U.S. 563 (1968).
[5] Hefferman v. City of Patterson, 578 U.S. _____ (2016).
[6] Connick v. Myers, 461 U.S. 138 (1983).
[7] Compare Liverman v. City of Petersburg, 844 F.3d 400 (4th Cir. 2016) (holding that the police department failed to demonstrate that employees’ social media posts resulted in actual disruption to business operations) with Graziosi v. City of Greenville, 775 F.3d 731 (5th Cir. 2015) (employee’s Facebook rant was actionable based on reasonable prediction of future workplace disruption).
[8] Garcetti v. Ceballos, 547 U.S. 410 (2006) (distinguishing between employee speech and citizen speech).
[9] Lane v. Franks, 573 U.S. 228 (2014).
[10] Giglio v. U.S., 405 U.S. 150 (1972) (due process requires prosecution to disclose evidence pertaining to witness credibility).
