Court Says Police Chief's Social Media Policy Violated The First Amendment

from the shut-up,-he-updated dept

While holding a position as a government employee can somewhat narrow your protected speech options, it doesn't mean your Constitutional rights are far closer to null and void than the average citizen's. The Fourth Circuit Court of Appeals, affirming a lower court's ruling, has found that a police department's social media policies have been treading too heavily on officers' First Amendment rights.

In early 2013, Chief John Dixon of the City of Petersburg (VA) Police Department revised the department's social media policy, adding two provisions. The preamble to the new rules set the tone. From the decision [PDF]:

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 first addition, supposedly supported by "established case law," notes that a very specific type of speech will not be tolerated.

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 second addition to the social media policy graciously "allows" officers to discuss general things about their job, so long as no one else in the force decides the comments are "disruptive."

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.

These additions to the policy were applied to comments made by two officers, who made negative comments on their own Facebook pages about the PD's tendency to promote rookie cops to supervisory positions. Chief Dixon was notified of these comments and decided they violated the new policy. He placed both officers on probation for six months.

Several weeks later, Chief Dixon made more alterations to personnel policies, changing the promotion procedures to immediately disqualify anyone currently on probation. The two officers informed the city they intended to challenge their punishment. Shortly thereafter, the two officers became the subject of several complaints and internal investigations. One was fired. The other resigned. The lawsuit followed, alleging retaliation for exercising their First Amendment rights.

The Appeals Court finds the policy not only infringes on the First Amendment rights of the officers, but discourages discussion of issues of public concern. Those two factors outweigh any perceived "disruption" that may have resulted from the officers' publicly-posted comments.

While we are sensitive to the Department’s need for discipline throughout the chain of command, the policy here and the disciplinary actions taken pursuant to it would, if upheld, lead to an utter lack of transparency in law enforcement operations that the First Amendment cannot countenance.

Further, the court finds that -- unlike the lower court -- that Chief Dixon can't avail himself of qualified immunity. Because the policy was facially unconstitutional, any disciplinary actions taken were similarly improper.

We hold that the Department’s social networking policy was unconstitutional and that the disciplinary measures taken against plaintiffs pursuant to that policy were likewise impermissible. The patent overbreadth of the policy negates Chief Dixon’s qualified immunity defense.

As the Appeals Court points out, to allow such a policy to remain intact would harm both the law enforcement agency and the public it serves.

Running a police department is hard work. Its mission requires capable top-down leadership and a cohesion and esprit on the part of the officers under the chief’s command. And yet the difficulty of the task and the need for appropriate disciplinary measures to perform it still does not allow police departments to wall themselves off from public scrutiny and debate. That is what happened here. The sensitivity of all the well-known issues that surround every police department make such lack of transparency an unhealthy state of affairs. The advent of social media does not provide cover for the airing of purely personal grievances, but neither can it provide a pretext for shutting off meaningful discussion of larger public issues in this new public sphere.

The court finds nothing to back up the officers' retaliation claims, but does send it back to the lower court to determine a remedy for the violation of the officers' First Amendment rights.

Courts have long noted that public sector employees don't immediately give up their First Amendment rights just because they've opted to work for the government. Chief Dixon's "case law-supported" policies were put in place to discourage criticism of his department, which is never a good reason for instituting restrictive social media policies.

And so much for the "support" of "established case law." Two courts in a row seem to have found plenty of case law to the contrary.

Filed Under: 4th circuit, first amendment, free speech, john dixon, petersburg, petersburg police department, police, social media policy, virginia


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  • icon
    Coyne Tibbets (profile), 19 Dec 2016 @ 12:03pm

    I'm sure he meant well

    While we are sensitive to the Department’s need for discipline throughout the chain of command, the policy here and the disciplinary actions taken pursuant to it would, if upheld, lead to an utter lack of transparency in law enforcement operations that the First Amendment cannot countenance.

    But-but-but that just can't be what Chief Despot Dixon intended!

    reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 19 Dec 2016 @ 12:03pm

    Purely coincidental timing I'm sure

    The court finds nothing to back up the officers' retaliation claims, but does send it back to the lower court to determine a remedy for the violation of the officers' First Amendment rights.

    They must have a very different definition of 'retaliation' then I do, because assuming the article is even remotely accurate that should have been even more obvious than the First violation.

    'The two officers informed the city they intended to challenge their punishment. Shortly thereafter, the two officers became the subject of several complaints and internal investigations. One was fired. The other resigned. The lawsuit followed, alleging retaliation for exercising their First Amendment rights.

    reply to this | link to this | view in chronology ]

    • icon
      Ninja (profile), 19 Dec 2016 @ 12:14pm

      Re: Purely coincidental timing I'm sure

      There's this saying here: "Judges brains and baby diapers are alike: you never know what's coming out of them."

      And from personal experience AND from reading about judicial decisions (including here on TD) this is quite precise.

      reply to this | link to this | view in chronology ]

      • icon
        killthelawyers (profile), 19 Dec 2016 @ 2:06pm

        Re: Re: Purely coincidental timing I'm sure

        I know snark is easier than reading, so let me just pull the relevant section for you:

        "Plaintiffs argue that the retaliation took the form of investigating their conduct on the force. . . . There were independent bases for each investigation. Livermn was investigated twice. In notifying the City of is First Amendment claims, Liverman requested a wide range of personnel records. While searching for responsive documents, the Department discovered that Liverman had sent sexually explicit emails to a female officer. The Department launched an investigation for sexual harassment, during which Liverman admitted to engaging in sexual misconduct on Department property and while on duty. . . .

        Richards was also investigated twice. Both inquiries were opened as a result of complaints initiated not by Chief Dixon but by his fellow officers. . . . The Department concluded the [first] investigation within one week, after Richards demonstrated his innocence. . . . [T]he Department determined that the [second complaint's] allegations were unfounded.

        Apart from generalized assertions regarding the existence of the investigations, plaintiffs fail to offer any evidence that the investigations were retaliatory. Far from groundless "fishing expeditions," each arose from discrete allegations of misconduct. Without more, we see no reason to question the legitimacy of the Department's investigations. After all, simply filing a *Pickering* claim does not confer indefinite immunity on employees or insulate them from subsequent investigation and discipline from unrelated misconduct. Granting relief on plaintiffs' retaliation claims would handcuff the Department by forcing inaction even where there is police behavior that warrants close review. Speech is one thing; misconduct something else. There are countless unobjectionable reasons why a police department might want to investigate an officer's performance, including absence from work, tardiness, insubordination, illegal activity, and basic failure to carry out one's duties in a competent and impartial fashion. The garden-variety investigations into Liverman's and Richard's conduct were no different, and we therefore reject their claims of retaliation."

        The Court's argument is both factually-based and legally sound. First, merely claiming the timing is suspicious is not enough to survive on summary judgment. At that point you need *more*. If you cannot turn up substantive facts to support your argument, the trial court should not allow you to make it to trial. Second, the policy reasons articulated make sense and are **good** policy. To do otherwise would allow officers blanket immunity while they are reporting misconduct, which is also not a desirable outcome. Therefore, there has to be some ability to reign in bad conduct, which basically leaves the only option - allow regular investigations of misconduct to continue and allow grounds for suit for pretextual investigations.

        You will always be entitled to your opinions, but may I ask that you spend more time *reading* judicial decisions, especially when they are included in the article, rather than just reading *about* them?

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 19 Dec 2016 @ 2:30pm

          Re: Re: Re: Purely coincidental timing I'm sure

          > If you cannot turn up substantive facts to support your argument, the trial court should not allow you to make it to trial.

          Because heaven forbid a jury agreeing with you.

          reply to this | link to this | view in chronology ]

        • icon
          That One Guy (profile), 19 Dec 2016 @ 2:51pm

          Re: Re: Re: Purely coincidental timing I'm sure

          Liverman's half of the lawsuit seems solid on First Amendment ground(something the court thankfully also thought), but seems like it also dug up some misconduct on his own part which came back to hit him, so that one might have been less retaliation and more 'Shooting his own foot' and/or 'If we're going down we're taking you down with us'.

          Richards on the other hand seems much more suspicious. Two investigations shortly after the challenge was made to the suspension, both of them finding that the claims were without ground strikes me as just a little 'off' in the timing, and I'm not exactly buying the idea that because they weren't initiated by Dixon it had nothing to do with the challenge, as it seems for that to hold water you'd have to assume no link between the chief of police and the officers beneath him, which strikes me as unlikely to say the least.

          reply to this | link to this | view in chronology ]

          • icon
            killthelawyers (profile), 19 Dec 2016 @ 3:43pm

            Re: Re: Re: Re: Purely coincidental timing I'm sure

            Suspicion is probably enough to begin a lawsuit. It's definitely not to get to a jury. This case was decided at the trial level on summary judgment. Summary judgment is typical done at the end of discovery, which is the fact-finding portion of a case. Summary judgment is appropriate where there is no genuine issue of material fact such that no reasonable jury could find in the non-moving party's favor. Mere speculation is not enough - you need actual material facts. Which makes sense - if during the entire fact-finding portion of the case you weren't able to come up with any actual facts, you have nothing really to present to a jury.

            What you're describing is, unfortunately, pure speculation. Is the timing suspect? Sure. But speculation isn't evidence on its own and the two officers were not able to show any other evidence to survive what is a very, very low burden.

            reply to this | link to this | view in chronology ]

          • icon
            killthelawyers (profile), 20 Dec 2016 @ 6:48am

            Re: Re: Re: Re: Purely coincidental timing I'm sure

            This case was decided on summary judgment. Summary judgment typically comes at the end of the fact-discovery portion of the case. To survive summary judgment, you must demonstrate that there is a genuine issue of material fact. That requires more than mere speculation about what may have happened; simply put, you have to show there are some facts which demonstrate the merits of your claim.

            In this case, sure, there's plenty of odd circumstances and speculation about *why* things happened, but the plaintiffs failed to uncover any facts which demonstrate that the investigations were pretextual for retaliation. Suspicious timing on its own is not evidence that will ever survive on summary judgment because timing does not demonstrate pretext alone. You need facts which demonstrate the pretext, rather than just speculation about motive. Had they found an email or memo directing the department to "dig up dirt", or a witness who claimed they were told so, or just about *anything* that was more than just speculative, they would have survived summary judgment. That they didn't should tell you more about the strength of their case rather than the wisdom of the judges.

            reply to this | link to this | view in chronology ]

        • icon
          Ninja (profile), 20 Dec 2016 @ 5:46am

          Re: Re: Re: Purely coincidental timing I'm sure

          I've been involved with justice in 3 occasions. In one of them it was regarding federal taxes. When you fill in your earnings report there was part of the earnings that should not incur in any tax deduction and this was both my, the company that paid me and a lawyer's understanding. Still my papers were held and I was summoned to clarify it. The government woman told me it was a mess because there were judges in the same circuit delivering opposite rules on the exact same cases with different people. In the end since there was no regulatory certainty the government employees were the ones deciding and people had to go to the justice if they disagreed. The woman that had my case let me go but she said I was lucky, some employees were adopting the exact opposite approach much like the judges.

          The second case was regarding an employee/employer dispute with a family member regarding work related diseases. In this relative case it was depression. I'm not sure you have it there but we receive help from the government if we get sick and can't work for extended periods of time but for that you need to be evaluated by both your doctor and a specialized one from the government. In this relative's case the government itself determined her condition was due to a bad environment at work and gave her 4 months. In any case, after a while the person decided to start a lawsuit against the company. The lawyer warned: it's a lottery. She had seen the exact same cases losing and winning depending on the judge and that usually female judges tend to be more sympathetic to those cases.

          Then in a third case another relative applied to a government job, undertook a test and was qualified. This relative's technical course had the exact description and study load required by the position but the name of the course was different. Everybody sane, including two lawyers believed it was an easy win. But the judge disagreed.

          So I'm sorry but I'll have to disagree with you. I have plenty of personal experience since I was directly involved in these cases either by being the affected party of by providing support (the depression case was problematic so I was always with the person doing most of the talk/work for instance). I agree with the initial comment: it's clear that there was retaliation and the judge is clueless on that front.

          reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 19 Dec 2016 @ 1:05pm

    Cry me a river...

    Do I see this correctly?

    A group of rights abusing officers crying about their rights?

    I wonder if they think about these things when they are the ones abusing rights?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 19 Dec 2016 @ 1:27pm

    Six months probation for Facebook connects? They would have got off easier of they'd been caught on camera shooting an unarmed suspect.

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 19 Dec 2016 @ 1:41pm

      Re:

      Have an Insightful/'Sad/disgusting but true' vote for that one.

      reply to this | link to this | view in chronology ]

    • identicon
      Michael, 20 Dec 2016 @ 10:31am

      Re:

      If you shoot an unarmed suspect and the video ends up on Facebook, you will be defended by the department and protected from prosecution.

      But if you "thumb's down" that video, you are totally screwed.

      reply to this | link to this | view in chronology ]

    • icon
      Coyne Tibbets (profile), 26 Dec 2016 @ 11:21am

      Re:

      Depends on who shot the suspect. The purpose was to crush these whistle-blowers, so if one of them had done the shooting he'd have gotten the death penalty.

      reply to this | link to this | view in chronology ]


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