In December 2016, the Fourth Circuit Court of Appeals ruled on two officers’ First Amendment challenge to their department’s social media policy and subsequent disciplinary actions taken against them.
The speech at issue was off-duty Facebook postings by officers Liverman and Richards complaining about rookies with insufficient experience being promoted and the lack of leadership that fostered these decisions. Most of those who liked or commented on the posts were current or former officers.
On the chief’s orders, the two officers were disciplined for violating a provision of the department’s social media policy which stated,
Negative comments on the internal operations of the Bureau, or specific conduct of supervisors or peers that impacts the public’s perception of the department is not protected by the First Amendment free speech clause…
The court ruled this provision was an unconstitutionally overbroad prior restraint on protected speech -- describing it as “a virtual blanket prohibition on all speech critical of the government” that could encompass protected speech about matters of “public concern” such as whether the department enforced the law effectively and fairly and whether its procedures and tactics best protected and served the community.
The City of Petersburg and the chief argued that a “public concern” provision sufficiently narrowed the “negative comments” provision by specifying,
Officers may comment on issues of public concern (as opposed to personal grievances) so long as the comments do not disrupt the workforce, interfere with important working relationships or efficient work flow, or undermine public confidence in the officer. The instances must be judged on a case-by-case basis.
But the court concluded this language did not salvage the unconstitutional overbreadth of the social media policy taken as a whole. Accordingly, the department’s social media policy could not be used as a management or disciplinary mechanism.
What departments need to understand
First, the legal test applied to a social media policy’s prior restraint on free speech is stricter than the test applied to disciplinary action taken after specific speech.
In United States v. National Treasury Employees Union, the Supreme Court held that the government faces a greater burden when it attempts to restrict speech prospectively because that chills potential speech before it happens versus addressing an isolated incident. To justify regulating future speech:
The Government must show that the interests of both potential audiences and a vast group of present and future employees in a broad range of present and future expression are outweighed by that expression’s “necessary impact on the actual operation” of the Government. [Citation omitted.] Further, the government “must demonstrate that the recited harms are real, not merely conjectural,” and that the regulation will in fact alleviate these harms in a direct and material way.
The Fourth Circuit found that the interests of present and future officers and their potential audiences in the matters Liverman and Richards commented on were “manifestly significant.” The court also held that, apart from generalized allegations of budding divisiveness, the department presented no evidence of any material disruption arising from Liverman’s, Richards’ or any other officer’s comments.
Second, the Fourth Circuit held that the chief did not have qualified immunity for damages the two officers incurred as a result of the disciplinary action. Qualified immunity shields government officials whose actions are ultimately ruled illegal but who could have reasonably believed they were acting lawfully under existing law. The Fourth Circuit found the right against prior restraint on speech as sweeping as the “negative comments” provision was “clearly established and then some.”
Examine social media policies
If a department’s social media policy is not patently unconstitutional, Liverman does nothing to change the test applied to disciplinary action taken after an officer’s online speech. That test is three-pronged:
1. Does the speech address a matter of public concern (as opposed to a personal grievance)?
2. Did the officer speak as a private citizen rather than as part of her job duties or function? (On-duty versus off-duty is not dispositive of this question.)
3. If one and two above, does the officer’s interest in the speech outweigh the department’s critical mission need for order, discipline, unity, community trust and cooperation?
Most reported decisions in cases addressing only the subsequent discipline of a public employee for speech, rather than the prior restraint of such speech, have ruled for the employing government agency.
Consider revising social media policies
While, the Liverman decision is only binding in federal courts in the Fourth Circuit, it may be looked to as guidance by other state and federal courts. A review of departmental social media policies in light of the decision would be prudent.
Departments and officers have an interest in officers feeling free to express legitimate concerns while balancing law enforcement’s critical mission of public safety and the need for order, discipline, unity and community trust and cooperation to accomplish that mission.
Social media policies should be developed that address these sometimes competing interests. They should not be developed to obscure departmental transparency or accountability on matters of public concern or to provide a mechanism for retaliating against legitimate criticism or dissent.
Officers need to think before they click. They might want to ask if they wouldn’t be better served voicing a particular expression in a private social or family setting for catharsis and commiseration or within the department in pursuit of positive change rather than publishing it on a global billboard.
