Social Media Assisted Career Suicide
By: Andrea F. Rocco, Attorney
“There is something about the social media environment that leads some officers to believe there is special protection given to speech made on line. That belief is wrong.”
Will Aitchison, renowned labor and employment counsel, is directly on point. While most citizens enjoy the rights afforded under the First Amendment, law enforcement personnel have seen those rights eroded. Garcetti v. Ceballos essentially changed First Amendment rights for public employees. Under Garcetti, if the speech is related to the job or a job-related inquiry there is no protection, even if the speech is true. In 2014, eight years after Garcetti was decided, the High Court retreated in Lane v. Franks.
Lane was a public employee who worked as an administrator in an Alabama community college. Lane discovered and reported one of his subordinates was lying about time worked and unlawfully collecting pay. Lane fired the employee and testified under subpoena at the employee’s criminal trial for theft. A short time after testifying, Lane was fired. Lane sued and argued the real motive behind his termination was the testimony he provided at the trial. The United States Supreme Court sided with Lane and determined the First Amendment protects a public employee who provides truthful sworn testimony, compelled by subpoena, outside the scope of the ordinary job responsibilities. In a concurring opinion, Justice Thomas specifically points out the constitutional issue of First Amendment protection would be an entirely different analysis if the speaker was testifying as part of his/her regular duties and used the example of a police officer to support his statement.
So still, even under Lane, law enforcement employees need to exercise extreme caution when using social media. Speech is generally protected when the court determines the subject matter is a “public interest.” Examples of public interest speech that have been afforded First Amendment protection include speech critical of high ranking officials or governing bodies like the mayor or city council, discussions on budget or personnel policies and activity involving widespread discrimination. Essentially, it is OK to talk or post about systematic discrimination in an agency but not the discrimination of an individual. Leonard v. City of Columbus.
Locally there have been several cases where officers have lost their job or been disciplined for social media content. In Vermilion, a veteran captain was terminated when he posted his support for legalizing marijuana along with a photo of his badge. An officer who while off duty developed a satirical Facebook page with access restricted to department police officers was suspended for five days. The arbitrator reduced the discipline but found the employer was within its rights to restrict social media participation where the content was work related.
Disciplinary action is not the only possible consequence to a questionable post. More and more often, defense attorneys are using the private postings of a police officer to attack the officer’s credibility. While this tactic would have to be permitted by the judge and admissible under the evidence rules, if judicial scrutiny is met, an officer will face cross examination including much more than the four corners of the criminal investigation. A comment about immigration could be used to allege bias against a defendant who is illegally in the country, a comment in support of an officer who is being investigated for excessive use of force could be twisted in a resisting arrest case.
A review of case law indicates that generally a police officer is not likely to win a lawsuit based upon First Amendment protections with one exception. When the person is speaking as a union representative on a union matter, he/she is generally afforded First Amendment protection. For the rest of you, if in doubt — go without.
If you must use social media, whether you are posting, tweeting, snapchatting or texting, keep the following in mind:
**Don’t identify yourself as law enforcement
**Don’t discuss cases
**Don’t discuss work-related subjects
**Don’t display your badge or uniform or any other law enforcement identifier
**Don’t post behavior that is illegal or could be construed as conduct unbecoming
Prior to the social media onslaught, law enforcement employees regularly gathered to decompress and share stories and there wasn’t a concern the topics discussed would be used in a negative manner. Those venues, whether it was the local bar, the police garage or a weekend barbecue offered built-in boundaries that ultimately protected the speaker. While these venues still exist, social media has in many instances replaced the “conversation around the water cooler.” Social media offers a speedy, unfiltered and unchecked mode to unload the frustrations and humorous aspects of the job. As a result, most departments have issued policies regarding social media use. Read yours, know what is permitted and what isn’t. Protect yourself as well as your department.