Police Department’s Social Media Policy Is Unconstitutional–Liverman v. Petersburg
The City of Petersburg’s police department adopted a social media policy for police officers that included the following restrictions:
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
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.
Two officers, Liverman and Richards, implicated these policies by making Facebook comments about the promotion policies for police (such as promoting junior officers to instructor and supervisory positions). They were orally disciplined and put on probation but told this would not affect their eligibility for promotion; the department then pulled a switcheroo and said officers on probation weren’t eligible for promotion. Liverman and Richards sued for, among other things, being disciplined pursuant to an unconstitutional department policy.
The court first questions social media exceptionalism:
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.
Still, the court recognizes social media’s important role in social discourse:
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….Facebook is a dynamic medium through which users can interact and share news stories or opinions with members of their community. [cite to Bland v. Roberts] Similar to writing a letter to a local newspaper, see Pickering, 391 U.S. at 569-70, 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”
As we’ve discussed before, social media chatter about work is similar to kvetching about your job around the office water cooler or while knocking back a cold one at the local watering hole….except that social media chatter tends to lead to more employee firings.
With respect to the policy’s constitutionality, the court notes “the astonishing breadth of the social networking policy’s language” and says the social media policy restricts officers’ discussions about matters of public concern:
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, arguably the “paradigmatic” matter of public concern….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 burdening of officers’ speech rights wasn’t sufficiently outweighed by demonstrated concerns of how the speech might hurt department operations. In this case, the department provided “no evidence of any material disruption arising from plaintiffs’ — or any other officer’s — comments on social media.” The court also said that Liverman and Richards weren’t discussing their individual situations but rather the broader policy issues about police promotions.
The police chief doesn’t get qualified immunity because this social media policy was so “patently” unconstitutional that the legal questions weren’t a gray area: “[T]he right against such a sweeping prior restraint on speech was clearly established and then some.”
How hard is it to draft an appropriate social media policy for employees? Actually, pretty hard. If you’re a government employer, you must navigate the Constitution. If you’re a private employer, you must navigate the NLRB’s overreaching views that you can virtually never stifle employee criticism (1, 2). So if you’re going to wade into these waters, get help from skilled employment lawyers who are keeping up with the very latest developments; and then calendar annual reminders to revisit and refresh the policies based on the latest developments.
We’ve encountered social media policies in police departments several times before (e.g., 1, 2, 3). This issue deserves our careful attention. I believe police department policies are almost always categorically a matter of public concern. As the court says, the “sensitivity of all the well-known issues that surround every police department make such lack of transparency an unhealthy state of affairs.” We need more transparency into police department policies, and the people best positioned to provide such information are the officers employed there.
While the police officers may get some compensation for the department’s unconstitutional policy, Liverman still lost his job. We’ve said it many times before: bashing your job online is a path fraught with peril. It’s much less risky to vent orally than in an analogous social media post.
Case Citation: Liverman v. Petersburg, 2016 WL 7240179 (4th Cir. Dec. 15, 2016)
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