Police Liability and Litigation
with Terrence P. Dwyer, Esq.
Risky business: Law enforcement and social media
Part one of a two-part series
The role of the Internet and our access to the receipt and dissemination of information has truly democratized media. Of course, as with anything, there are downsides and sometimes this level of access means we have to be careful of media sources and the accuracy and veracity of information received.
Still, social media has its proven benefits which law enforcement has actively embraced — everything from using social media platforms to keep the public informed to facilitating criminal investigations.
However, the oft-quoted statement by philosopher George Santayana — “Those who cannot remember the past are doomed to repeat it” — is particularly applicable in light of some recent public scandals involving law enforcement, national security matters, internet use and social media.
People do Silly Things
How many stories have we encountered over the past few years about law enforcement and other first responders who lost their jobs or were disciplined over the posting of social media content?
Not only do we now read or hear of police officers, firefighters, or EMTs committing FaceBook blunders but teacher, politician, attorney, doctor, and pro athlete stories have also gained media attention. From the perspective of law enforcement, the most glaring omission in this whole matter is that many law enforcement agencies still do not have a social media use policy in place.
I recently was told a story of a police officer who received a 20-day suspension for an objectionable FaceBook post. The employer was made aware of the post and disciplined the officer. The appalling aspect of the story as it was related to me was the fact that the agency, a rather large and sophisticated organization, did not have a social media policy.
Many times as a police attorney I have used an agency’s lack of a formal policy or any training in the policy as a successful defense in discipline cases. Policy certainly protects the employer but it also protects the employee by providing clear notice and an articulation of objectionable behavior. In many cases clear agency guidelines may have been preventative, but even the best policy being in place cannot account for a basic lack of common sense.
To quote Forrest Gump’s mama, “Stupid is as stupid does.”
The Secret Service hooker scandal in Cartegna, Columbia and subsequent news reports that a supervisory agent at the center of the scandal had a prior Facebook posting with a picture of him standing behind then Vice-Presidential candidate Sarah Palin with the comment that he was “checking her out” is a recent example of policy not even being able to curb bad judgment.
This was embarrassing for the Secret Service and unprofessional on the part of the agent.
Salacious and Titillating
More recently in the news was the affair involving CIA Director David Petraeus and his biographer Paula Broadwell. As this story grew there were side stories that provided as much salacious and titillating detail. One of them involved Jill Kelley the women who reported to law enforcement that she received several anonymous threatening emails. An FBI investigation uncovered Petraeus’ mistress Broadwell as the source of the e-mails. Soon to be uncovered were scores of unsecured emails between Petraeus and Broadwell.
The impropriety of the relationship, especially in light of Petraeus’ sensitive position as CIA Director, was one aspect of this story but another was the FBI agent friend of Kelley who became involved in this case. News reports surfaced indicating he sent her a picture of himself without a shirt. Though the FBI agent and Kelley had been friends and the photo was sent in the context of a joke prior to the scandal the agent was removed from the case based on this disclosure.
This is just another example of the less than private nature of our social media use.
The Petraeus story moved from a complaint of cyber-stalking to exposure of an affair to embarrassing disclosures of social media content to potential compromise of national security information. For many officers caught up in a social media scandal the story line is less complex but the effects can be individually as devastating. Oftentimes prior Facebook posts, Tweets, or uploaded photos come bounding back to subject the officer to discipline, demotion or unemployment.
A common assumption that the First Amendment completely protects this speech is wrong. No right is limitless. Public employees do sacrifice some aspects of free speech by the nature of their employment. The plain fact of the matter is that social media use has inherent risks for law enforcement and, as such, it needs to be approached with the same caution as any other risk based activity.
This does not mean officers should stop using social media just that the officer must do so wisely.