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.