James “Jeb” Brown, Esq.; John G. Peters, Jr., Ph.D.; and Rick Muir, Ph.D.
©2023. A.R.R.
The prevalence of social media scandals involving law enforcement is on the rise and appears to be widespread.
Instances have occurred in Antioch, CA; Philadelphia, PA; Torrance, CA; Wichita, KS; London, in the UK; and in many other locations. It’s evident that these incidents are not confined to specific geographic locations. Regrettably, each subsequent scandal appears to be more severe than its predecessor.
Social media scandals usually involve officers texting or posting offensive language or memes over social media. Examples include posts which are racist or sexist in nature. These occurrences often signal an underlying issue within the organizational culture of the agency. In departments which prioritize officer accountability, such incidents are less prone to happen. Strong organizational culture generally finds offensive speech is not tolerated by fellow officers and those who engage in it are investigated and disciplined when confirmed.
In contrast, texting misconduct flourishes where there is a lack of accountability and/or institutional control by command staff. While training, policies and discipline can address the symptoms, it is critical that the culture of the organization be addressed to fix the “cause” of the problem. Bear in mind that the top administrator and command staff create organizational culture.
After analyzing several social media scandals, it has been suggested that an “us vs. them” mentality develops among the involved officers and select groups. This mentality is damaging to any law enforcement agency because it shows implicit or actual bias toward particular members of the community which must be addressed. One evidence-based approach for addressing this is the development of training which recognizes and emphasizes the value of all communities and their residents (e.g., disabled, LGBTQ+, people of color).
Community Outreach
Engaging in police-community outreach, where officers interact with members of the community, can play a pivotal role in dismantling barriers, fostering mutual appreciation and promoting better understanding among all individuals involved. In fostering these relationships, administrators, officers and community members serve as a three-way conduit, creating understanding and reducing the chances of an “us vs. them” mentality from developing within a department and/or the community. The appropriate way to build these relationships can be explored and discussed, but a one-size-fits-all approach will not work because each community is different. Rather, departments should meet with community members to determine the best approach for developing partnerships with officers.
Officer Rights and Administrative Discipline
Even with sound agency culture and community involvement, there may be one or more officers who continue to engage in improper social media speech. Can these officers be disciplined for their alleged misconduct? Is this speech protected by the First Amendment?
Legal Standard
The seminal case discussing public employee free speech is Pickering v. Board of Education, (1968) 391 US 563. Marvin Pickering, a public school teacher, wrote a letter to the editor of a local newspaper complaining about a recently defeated school board proposal to increase school taxes. The letter complained about the board’s handling of past proposals and the allocation of funds favoring athletics over academics. The school board members believed the letter was “detrimental to the efficient operation and administration of the schools” and opted to fire Pickering. Pickering sued in the Circuit Court alleging his letter was speech protected under the First Amendment. The court ruled in favor of the school board and the Supreme Court of Illinois affirmed.
On further appeal, the United States Supreme Court considered whether Pickering’s speech was protected by the Constitution. In an 8-1 majority opinion, the Court held that the speech was protected by the First Amendment. In reaching this holding, the Court provided a two-part test to analyze whether public employee speech is protected. The first question is whether the employee spoke on a matter of public concern. If the matter is not of public concern, for example, the speech deals with the failure to obtain a promotion, then the speech is not protected by the Constitution. If the matter is of public concern – for instance, a budgetary shortfall which will impact public safety staffing – then the analysis advances to the second question. The next step in the analysis is the balancing of interests between the employee’s right to free speech against the employer’s interest in an efficient, disruptive-free workplace.
This two part “Pickering Test” was further clarified in Connick v. Myers, (1983), 461 US 138. In Connick, Sheila Meyers worked as an assistant district attorney for just over five years when her boss transferred her to a different section of the criminal court. Meyers strongly opposed this transfer and made her feelings known to several supervisors, including District Attorney Harry Connick. Before the official transfer took place, Meyers prepared a questionnaire asking for her coworkers’ views on the transfer policy, office morale and the level of confidence in supervisors. When Connick learned of the questionnaire, he immediately terminated Meyers. He said he fired her because she refused to accept her transfer. He also said that distributing the questionnaire was insubordination. Meyers sued, alleging that her termination violated her First Amendment right to free speech. The District Court ruled in favor of Meyers and ordered her reinstatement, payment of back pay, damages, and attorney fees. The US Court of Appeals for the Fifth Circuit affirmed. It was then appealed to the Supreme Court of the United States (SCOTUS).
In a 5-4 decision, SCOTUS reversed, holding that speech of public employees is generally only protected when they speak on matters of public concern. Here, Meyers’ speech only dealt with personal and internal office issues which were not matters of public concern. The Supreme Court also held that the District Court had erred in placing too high of a burden on Connick to show that Meyers’ speech substantially interfered with the operation of the office. It is sufficient to show that the employer reasonably believed Meyers’ speech would interfere with office operations.
Finally, in Garcetti v. Ceballos, (2006), 547 US 410, SCOTUS analyzed whether the speech of a public employee which was “job-related” was also protected by the First Amendment. Here, Richard Ceballos, an employee of the Los Angeles District Attorney’s office, found that a sheriff misrepresented facts in a search warrant affidavit. Ceballos notified the attorneys prosecuting the case stemming from that arrest and all agreed that the affidavit was questionable, but the DA’s office refused to dismiss the case. Ceballos then told the defense he believed the affidavit contained false statements and defense counsel subpoenaed him to testify. Seeking damages in federal district court, Ceballos alleged that DAs in the office retaliated against him for his cooperation with the defense which he argued was protected by the First Amendment. The District Court ruled that the district attorneys were protected by qualified immunity, but the Ninth Circuit reversed and ruled for Ceballos, holding that qualified immunity was not available to the defendants because Ceballos had been engaged in speech which addressed matters of public concern and was thus protected by the First Amendment.
In a 5-4 decision, SCOTUS ruled that that speech by a public official is only protected if it is engaged in as a private citizen, not if it is expressed as part of the official’s public duties. Ceballos’s employers were justified in taking action against him based on his testimony and cooperation with the defense, therefore, because it happened as part of his official duties. “The fact that his duties sometimes required him to speak or write,” Justice Kennedy wrote, “does not mean his supervisors were prohibited from evaluating his performance.”
These three cases are the guideposts in determining whether the speech of a public employee is protected by the First Amendment. If the speech is not protected, then employers may discipline employees who violate policy by engaging in speech that is discriminatory.
Social Media Policies
Setting expectations of employees and providing clear guidelines of acceptable behavior can be an effective tool in managing employee behavior on social media. However, employers should be aware of certain restrictions on such policies. For instance, union activity online may be protected speech under the Constitution, state law, local ordinance, or MOU provisions. Further, information from social media in some circumstances may be subject to Freedom of Information Act or Public Records Act requests. This information may also be discoverable in civil litigation in federal or state courts.
Employers need to have a social media policy which prohibits employees from using social media which violates agency policies and/or laws. The policy needs be reviewed annually to ensure compliance with any changes in the law. It is also critical that training be provided on the policy and that violations of the policy are consistently enforced.
Policies should take guidance from the cases discussed above and should be tailored to individual departments and jurisdictions. One example of this type of policy is from the Riverside (CA) Police Department:
Public employees occupy a trusted position in the community, and thus, their statements have the potential to contravene the policies and performance of this department. Due to the nature of the work and influence associated with the law enforcement profession, it is necessary that employees of this department be subject to certain reasonable limitations on their speech and expression. To achieve its mission and efficiently provide service to the public, as an example, the Riverside (CA) Police Department will carefully balance the individual employee’s rights against the Department’s needs and interests when exercising a reasonable degree of control over its employees’ speech and expression.
Download a copy of the Riverside PD policy manual (835 pages) can be downloaded here: Riverside Police Department Policy The specific section covering Employee Speech, Expression and Social Networking (1030) can be found on page 779.
Summary
This particular problem is both serious and continues to escalate. These controversies undermine the confidence which the public has in law enforcement across the country. It is important for law enforcement managers and administrators to understand the legal boundaries of First Amendment protection of public employee speech. This is the first step to holding officers accountable when they engage in speech which violates policy. Second, clear policies, coupled with training and enforcement of those policies, are critical to correcting this type of behavior. Establishing and maintaining accountability enhances the public’s trust in law enforcement and fosters responsibility within your department.
Ultimately, this problem reflects department cultures which seek minimal accountability. Fostering a culture of accountability and a culture which values and nurtures public trust is of utmost importance. Simply put, agencies which have a positive culture and accountability will not suffer these scandals because this misconduct simply will not be tolerated by command and supervisory staff. Developing and maintaining this positive culture is the best way to protect law enforcement agencies from becoming entangled in one of these scandals which can create negative community image, community member-officer estrangement, and can result in large jury verdicts.
James “Jeb” Brown, Esq., retired from Riverside County (CA) as Chief Assistant County Counsel and is now in private practice. He has represented law enforcement for over 30 years. Jeb serves as Assistant Executive Director of the Americans for Effective Law Enforcement, Inc. (AELE), a not-for-profit organization specializing in law enforcement and legal education.
John G. Peters, Jr., Ph.D., serves as president of the internationally recognized training firm, Institute for the Prevention of In-Custody Deaths, Inc. and is Executive Director of the AELE. An experienced instructional designer, he is a frequent contributor to Police and Security News.
Dr. Rick Muir is Director of the Police Foundation, the UK’s independent policing think tank. He has led the Foundation since 2015 and oversaw its work on the Strategic Review of Policing in England and Wales. He was previously Associate Director at the Institute for Public Policy Research (IPPR), leading the Institute’s research on public services, including policing and criminal justice. He has a D Phil in Politics from the University of Oxford. He is currently a Visiting Professor at Northumbria University and a Fellow of the Royal Society of Arts, Manufactures and Commerce (RSA).
