Court Strikes Down Police Department Social Media Policy In Ho-Hum Non-Precedent Setting But Widely Discussed Decision

Today’s burning question: I just saw that the 4th Circuit struck down a police department’s social media policy based on the First Amendment. I live in Nevada, which is part of the 9th Circuit. Will that ruling be binding here?

Answer: Boy, there sure is a lot of interest in that 4th Circuit case. I have received over 25 emails and social media contacts TODAY ALONE about the case – which was decided December 15, 2016.

Let me make this quick and to the point: The 4th Circuit ruling in the case of Liverman et al v. City of Petersburg et al (4th Cir., 2016) IS NOT GROUND BREAKING… It merely confirms what has been settled law for years: A public employer cannot have a policy (social media or otherwise) that prohibits employees from making public statements that disparage their department. Such a policy is considered to be a prior restraint upon the exercise of the public employee’s 1st Amendment Rights. It will be struck down if challenged.

Fire departments need to have a well-written social media policy that conforms to First Amendment case law. END OF SHORT VERSION!

For those interested in going beyond the headline, let’s dig into the Petersburg case a little bit more. Because the decision is so well written and so well reasoned – I think it best to explain the case using the 4th Circuit’s own words:

  • Two police officers challenge disciplinary actions for violations of their Department’s social networking policy.
  • Plaintiffs Herbert Liverman and Vance Richards were veteran police officers in the City of Petersburg’s Police Department.
  • In April 2013, Chief Dixon issued a general order revising the Department’s social networking policy. That policy governs officers’ use of social media platforms. The preface to the revised policy prohibits in sweeping terms the dissemination of any information “that would tend to discredit or reflect unfavorably upon the [Department] or any other City of Petersburg Department or its employees.” The central provision of the policy, which we will refer to as the Negative Comments Provision, states:

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, in accordance with established case law.

  • Another provision, which we label the Public Concern Provision, specifies:

Officers may comment on issues of general or 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.

  • While off-duty on June 17, 2013, Liverman posted a message to his Facebook page:

Sitting here reading posts referencing rookie cops becoming instructors. Give me a freaking break, over 15 years of data collected by the FBI in reference to assaults on officers and officer deaths shows that on average it takes at least 5 years for an officer to acquire the necessary skill set to know the job and perhaps even longer to acquire the knowledge to teach other officers. But in todays world of instant gratification and political correctness we have rookies in specialty units, working as field training officer’s and even as instructors. Becoming a master of your trade is essential, not only does your life depend on it but more importantly the lives of others. Leadership is first learning, knowing and then doing.

  • Richards, also off-duty at the time, commented as follows:

Well said bro, I agree 110%… Not to mention you are seeing more and more younger Officers being promoted in a Supervisor/ or roll. It’s disgusting and makes me sick to my stomach DAILY. LEO Supervisors should be promoted by experience… And what comes with experience are “experiences” that “they” can pass around to the Rookies and younger less experienced Officers. Perfect example, and you know who I’m talking about….. How can ANYONE look up, or give respect to a SGT in Patrol with ONLY 1 1/2yrs experience in the street? Or less as a matter of fact. It’s a Law Suit waiting to happen. And you know who will be responsible for that Law Suit? A Police Vet, who knew tried telling and warn the admin for promoting the young Rookie who was too inexperienced for that roll to begin with. Im with ya bro….smh*

  • Later that day, Liverman responded to Richards with a comment of his own:

There used to be a time when you had to earn a promotion or a spot in a specialty unit…but now it seems as though anything goes and beyond officer safety and questions of liability, these positions have been “devalued”…and when something has no value, well it is worthless.

  • Richards then replied:

Your right….. The next 4yrs can’t get here fast enough… From what I’ve been seeing I don’t think I can last though. You know the old “but true” saying is…. Your Agency is only as good as it’s Leader(s)… It’s hard to “lead by example” when there isn’t one….smh

  • [Chief] Dixon determined that the statements violated the Department’s social networking policy and instructed the sergeants to discipline the officers. In the disciplinary action forms, the Department stated that Liverman’s follow-up comment and both of Richards’s comments violated the Negative Comments Provision. They each received an oral reprimand and six months’ probation, but were advised that such discipline would not affect their eligibility for promotion.
  • Several weeks later, however, Chief Dixon altered the qualifications for promotion. The new protocol expressly excluded any officers on probation from participating in the promotion process. Accordingly, when Liverman and Richards applied for open sergeant positions, the Department notified them that they were ineligible to sit for the promotional exam.
  • On October 1, 2013, the two officers sent a letter informing the City that they intended to challenge the disciplinary actions. Shortly thereafter, Liverman and Richards were the subject of several complaints and investigations within the Department. Based on the findings, Chief Dixon decided to fire Liverman, but Liverman resigned before receiving notice of his termination.
  • On March 5, 2014, Liverman and Richards filed a six-count complaint in federal district court under 42 U.S.C. § 1983, seeking damages and other relief against Chief Dixon and the City for various violations of the First Amendment.
  • The legal framework governing public employee speech claims is well known. Public employees may not “be compelled to relinquish the First Amendment rights they would otherwise enjoy as citizens to comment on matters of public interest.” Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968).
  • Underlying this principle is the recognition that “public employees are often the members of the community who are likely to have informed opinions as to the operations of their public employers.” City of San Diego v. Roe, 543 U.S. 77, 82 (2004)
  • Nonetheless, a citizen who accepts public employment “must accept certain limitations on his or her freedom.” Garcetti v. Ceballos, 547 U.S. 410, 418 (2006).
  • Government employers enjoy considerable discretion to manage their operations, and the First Amendment “does not require a public office to be run as a roundtable for employee complaints over internal office affairs.” Connick v. Myers, 461 U.S. 138, 149 (1983).
  • Courts begin the First Amendment inquiry by assessing whether the speech at issue relates to a matter of public concern.
  • If speech is purely personal, it is not protected and the inquiry is at an end. If, however, the speech is of public concern, courts must balance “the interests of the [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.”
  • The district court granted summary judgment to Liverman on his challenge to the social networking policy, but denied Richards’s parallel claim on the grounds that his speech was not protected by the First Amendment.
  • We hold that the Department’s social networking policy is unconstitutionally overbroad and, for the following reasons, award judgment to Richards on his claim as well.
  • Although regulations on social media use may appear to present novel issues, we agree with the district court that such questions are amenable to the traditional analysis set forth in Connick and Pickering. Indeed, the particular attributes of social media fit comfortably within the existing balancing inquiry: A social media platform amplifies the distribution of the speaker’s message — which favors the employee’s free speech interests — but also increases the potential, in some cases exponentially, for departmental disruption, thereby favoring the employer’s interest in efficiency. What matters to the First Amendment analysis is not only the medium of the speech, but the scope and content of the restriction.
  • Here we deal with a broad social networking policy setting forth the parameters of public employee speech.
  • The threshold question in this case is whether the Department’s policy regulates officers’ rights to speak on matters of public concern.
  • There can be no doubt that it does: the restraint is a virtual blanket prohibition on all speech critical of the government employer. The explicit terms of the Negative Comments Provision prevent plaintiffs and any other officer from making unfavorable comments on the operations and policies of the Department…
  • Weighing the competing interests … we begin by noting the astonishing breadth of the social networking policy’s language. The policy seeks to prohibit the dissemination of any information on social media “that would tend to discredit or reflect unfavorably upon the [Department
  • In particular, the Negative Comments Provision proscribes “[n]egative comments on the internal operations of the Bureau” — which could be just about anything — or on the “specific conduct of supervisors or peers” — which, again, could be just about anything.
  • The interests of “present and future employees” and their “potential audiences” in such speech is manifestly significant.
  • We do not, of course, discount the capacity of social media to amplify expressions of rancor and vitriol, with all its potential disruption of workplace relationships …
  • But social networking sites like Facebook have also emerged as a hub for sharing information and opinions with one’s larger community. And the speech prohibited by the policy might affect the public interest in any number of ways, including whether the Department is enforcing the law in an effective and diligent manner, or whether it is doing so in a way that is just and evenhanded to all concerned. The Department’s law enforcement policies could well become a matter of constructive public debate and dialogue between law enforcement officers and those whose safety they are sworn to protect.
  • [T]his policy will cut short all of that. To repeat, it squashes speech on matters of public import at the very outset.
  • Because the Department’s social networking policy unmistakably imposes a significant burden on expressive activity, we next consider whether the Department has adequately established “real, not merely conjectural” harms to its operations.
  • Chief Dixon’s primary contention is that divisive social media use undermines the Department’s interests in maintaining camaraderie among patrol officers and building community trust. These are, to be sure, legitimate interests.
  • Here, however, the Department fails to satisfy its burden of demonstrating actual disruption to its mission. Apart from generalized allegations of budding “divisiveness” and claims that some “patrol officers sought [shift] transfers” … Chief Dixon presented no evidence of any material disruption arising from plaintiffs’ — or any other officer’s — comments on social media.
  • The form and context of the comments indicate that plaintiffs did in fact speak on an issue of public concern. Regarding the form of speech, we find it significant that the officers chose Facebook as the forum for their communication. As our colleague Judge Traxler has recognized, Facebook is a dynamic medium through which users can interact and share news stories or opinions with members of their community.
  • Similar to writing a letter to a local newspaper… publicly posting on social media suggests an intent to “communicate to the public or to advance a political or social point of view beyond the employment context.”
  • Further, the officers’ Facebook comments were prompted by other “posts referencing rookie cops becoming instructors.”
  • Accordingly, the context of the speech buttresses our conclusion that Liverman and Richards were not simply airing personal grievances but rather were joining an ongoing public debate about the propriety of elevating inexperienced police officers to supervisory roles.
  • Whether plaintiffs were correct or not in their views is not the issue. The matter they addressed was of more than personal import. We thus have no trouble finding that plaintiffs’ Facebook comments, which addressed risks posed by the Department’s inexperienced supervisors, raised issues of public concern.
  • In light of the First Amendment protection accorded to the officers’ posts, we conclude that the discipline they received pursuant to the social networking policy was unconstitutional.

For those fire departments who need help with their social media policy, take a look at my social media policy bullet points. Just click on the Bullet Points tab on Fire Law. Also, I offer several classes on social media that will help fire departments draft social media policies as well as firefighters understand their rights – 2 sides of the same coin!!!!

Here is a copy of the ruling: 2016-4th-cir-petersburg

UPDATE: After reviewing some of the social media commentary/misinformation about the Petersburg ruling – I need to make an important point. The case does not say that public employees can say what ever they want in social media. It says the public employers need to be careful in how they draft their social media policies. It is not so much a “game changer” – as it is a reaffirmation of longstanding 1st Amendment case law. To the extent that some fire departments did not get the memo about “prior restraints”… perhaps it is a game changer… But it is a limited game changer.

The protections afforded by the 1st Amendment to public employees apply only when the employee is speaking/posting as a private citizen on a matter of public concern, and only to the extent that the employee’s comments do not cause actual harm or disruption to the mission and function of their department.

My advice to firefighters remains:

  • Don’t post in such a way that you may be viewed as being a spokesperson for your fire department without permission.
  • Don’t air petty/personal grievances.
  • Do not post in such a way that causes actual harm or disruption to your fire department. The most common way folks get themselves in trouble in this regard is when they imply (or expressly say) that they harbor such animosity toward others that they cannot or will not provide a quality service to everyone in the community…

 

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
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