Social Media and the Public Sector: Understanding Free Speech Rights

Social media and law enforcement - LexipolBy Rick Bates

“Congress shall make no law … abridging freedom of speech.” 

This quotation is from the First Amendment in the Bill of Rights. And while it seems straightforward, consider the words of Massachusetts Supreme Judicial Court Justice Oliver Wendell Holmes, thought by many to be one of the finest jurists of all time. In the 1892 case of McAuliffe v. City of New Bedford, Holmes wrote that with regard to a police officer’s First Amendment rights, he “may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.”

How do we reconcile these two statements? The answer lies in the dichotomy of the government as a sovereign versus the government as an employer. The sovereign’s ability to regulate content is subject to the highest level of judicial scrutiny, requiring a compelling government interest to regulate the speech (which is rarely found). The government as employer, however, may regulate the time, place and manner of speech, and thus be subject to a lower level of judicial scrutiny. In such cases, the forum is a factor. As you will see, the judicial pendulum has swung back and forth based upon our social norms at the time.

You might be asking yourself, how does the “speech” of a public-sector employee become an issue that winds its way all the way to the U.S. Supreme Court? The quotations are added because speech can take on many forms, from oral assertions to written words to political and other associations, all as ferreted out by voluminous case law.

The answer to how speech makes its way to the Supreme Court starts when a public-sector employee—a police officer, firefighter, corrections officer or a teacher, for example—speaks in a manner that offends his/her employer. As a result, the employer takes an adverse employment decision, usually some form of discipline (a suspension, termination, demotion or lack of promotion). And the employee sues, averring that the employer abridged his/her constitutional right to free speech.

For over a half-century, Justice Holmes’ assertion that public-sector employees had no First Amendment rights was classic authority in the United States. This analysis lent itself to the master/servant relationship that prevailed at the time: Public employment was a privilege bestowed by the sovereign, and therefore not a right protected by the Bill of Rights.

The U.S. Supreme Court followed Justice Holmes’ lead in 1947 in United Public Workers of America v. Mitchell, upholding the terminating of a federal employee for violation of the Hatch Act, which regulated political activity by federal employees. The pendulum then, starts at the right.

Due Process and the Pickering Test
Things began to change with the emergence of the Due Process Era of the 1960s. Courts began to see the First Amendment as affording limited constitutional protection to certain speech by public-sector employees. In Pickering v. Board of Education (1968), the U.S. Supreme Court decided that public-sector employees did not totally relinquish their First Amendment rights at the door. The pendulum swung to the left.

However, while Pickering recognized that public-sector employees had First Amendment rights, it did not rule that such rights were absolute. Rather, it adopted the rather nebulous “Pickering Test.” The test has two parts:

1. When a speech case makes its way into a court of the law, the first question to be asked is, “Is the speech on a matter of public concern?” However, the court failed to accurately define what was in fact a matter of public concern, and several Supreme Court rulings that followed struggled to clarify. Initially, public concern was defined as “any matter of political, social or other concern to the community.” Eventually, the definition narrowed to focus on the question, is the speech a “subject of general interest and of value and concern to the public at the time of the publication?” As you can see, this definition is quite broad, and therefore, not a difficult test to hurdle.

2. The second prong of the Pickering test requires the court to balance the interests of the employee in commenting on matters of public interest versus the government employer in regulating the speech. Remember the dichotomy here, as we are talking about the government as an employer, not as the sovereign. As such, this becomes a forum analysis, and not just a content analysis. Context is key.

The government interests often espoused in these cases fall into two broad categories:• Internal interests, such as detrimental impact on working relationships, impediment to the employee’s ability to perform his/her job, impairment of discipline by supervisors, impairment of harmony among co-workers and interference with the regular operation of the enterprise• External interests, such as the disruptive consequences on police activities, intense media coverage and the impact on recruitment effects

The Pendulum Swings Again: Garcetti v. Ceballos
After this paradigm had been established for public employee speech, the pendulum swung back again in the 2006 seminal case of Garcetti v. Ceballos. A supervising District Attorney had drafted an internal memorandum questioning the veracity of an affidavit in support of a search warrant. When his concerns were not taken seriously, he testified for the defense. And when he was subsequently transferred and passed up for promotion, the DA sued, avowing his First Amendment rights had been violated.

The court decided the Pickering test was inapplicable to “on-duty” speech and ruled, “When public employees make statements pursuant to their official duties, they are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” The Court stated that the public employees’ rights can be adequately protected by whistleblower statutes. However, those statutes vary widely across the country and can be limited in their protection.

Courts have since struggled with this onerous decision and a few cases have begun to whittle away at the black-letter ruling espoused in Garcetti, but it is still the law today.

On or Off Duty?
The result of Garcetti is that the public employment free speech analysis must be bifurcated: Was the speech on-duty or off-duty? If the speech owes its existence to the public employee’s employment, then Garcetti controls and the employee is afforded no constitutional protection (aside from the limited protections afforded in any applicable whistleblower statutes). If the speech is off-duty, and not made pursuant to the employee’s official duties, then the two-pronged Pickering Test applies. In such cases, the court normally balances the employee’s interest in public speech versus the government employer’s interest in regulating that speech.

It is in this off-duty arena where litigation often arises. We’ve already established that public-sector employees are afforded limited constitutional protection if they’re speaking on a matter of public concern. However, the courts have continually recognized that the effectiveness of government entities may be undermined even when the speech touches on a matter of public concern. This is even more prevalent in law enforcement. In Breuer v. Hart, the court ruled law enforcement employers have a heightened interest in maintaining discipline and harmony in the workplace and in fostering a positive relationship with other agencies and the public, stating that there is an “urgent need for close teamwork among those involved in the ‘high stakes’ field of law enforcement.”

And that brings us to the 2nd Circuit Court of Appeals 2002 case of Pappas v. Giuliani. The court upheld the termination of a police officer for anonymously disseminating racially offensive material, citing McAuliffe in its opinion. The Court wrote:

“The effectiveness of a city’s police department depends importantly on the respect and trust of the community and on the perception in the community that it enforces the law fairly, even-handedly, and without bias … If the police department treats a segment of the population of any race, religion, gender, national origin, or sexual preference, etc., with contempt, so that the particular minority comes to regard the police as oppressor rather than protector, respect for law enforcement is eroded and the ability of the police to do its work in that community is impaired. Members of the minority will be less likely to report crimes, to offer testimony as witnesses, and to rely on the police for their protection. When the police make arrests in that community, its members are likely to assume that the arrests are the product of bias, rather than well-founded, protective law enforcement. And the department’s ability to recruit and train personnel from the community will be damaged.”

(Firefighters and other public-sector employees, don’t think you’re off the hook because this decision pertained to law enforcement. Pappas was cited in the 2nd Circuit Court of Appeals case of Locurto v. Giuliani in upholding the termination of firefighters who had been riding on a racially offensive float in a city parade.)

Furthermore, in Phillips v. Pamplico the 4th Circuit Court of Appeals, citing the U.S. Supreme Court in Rankin v. McPherson, upheld the termination of a police chief for criticizing his town council, writing that “a public employee who has a confidential, policy making, or public contact role and speaks out in a manner that interferes with or undermines the operation of the agency, its mission, or its public confidence, enjoys substantially less First Amendment protection than does a lower level employee.”

Free Speech Meets Social Media
So why is the public sector free speech analysis so important and relevant today? Because of the social media explosion! From Facebook to Twitter to Instagram—and in whatever forum going forward—off-duty public sector employees have a false sense of security that they can hide behind their keyboards and will be afforded constitutional protection from adverse employment action when they post offensive content.

The country is littered with ex-public-sector employees who thought they could post whatever content they wanted on the internet without ramification, only to find out their employer did not feel the same way. These employees then run the First Amendment protection up the flagpole, only to find it is not there to protect them—because the government’s interest (as an employer) in regulating their speech outweighed their interests in that free speech.

Did Justice Holmes have a crystal ball? In 1892 he declared public-sector employees had little, if any, constitutional protection for their “speech.” Today, social media and the internet have vastly complicated the forms of speech we engage in. But in terms of constitutional protection for that speech, the pendulum has swung right back to where it started.

Lexipol’s Policy Manual and Daily Training Bulletin Service provides essential policies that guide police officers, firefighters and correctional staff, including a comprehensive social media policy. Contact us today for more information or to request a free demo.

Rick Bates - LexipolRick Bates is a Professional Services Representative for Lexipol. He retired as a lieutenant after a 32-year career with the Worcester (MA) Police Department, serving as a risk manager, accreditation manager, academy director, legal advisor, internal investigator, detective and patrol officer during his time with the department. Rick lectures frequently on risk management for law enforcement, police supervisory liability, and First Amendment and free speech issues for police. He earned his Bachelor’s degree in Criminal Justice from Anna Maria College and his Juris Doctor from New England School of Law. Rick is a 2012 graduate of the FBI National Academy Session 249 and graduated from the Massachusetts Police Leadership Institute.



    (844) 312-9500

Director Daniel Keen
Northampton (PA) Department of Corrections

“It came down to three main factors for us: safety, time and efficiency. This is a way to protect  the staff, public and inmates in the best interest of all.”

Major Jeff Fox
Vigo County (IN) Sheriff's Office

“Lexipol’s Implementation Services program was key to getting our manuals off the shelf. If it weren’t for that, we wouldn’t be implemented today. Departments should recognize their limitations and realize that they likely don’t have the resources to do it on their own. Implementation Services is key to getting it done.”

Chief Deputy Ray Saylo
Carson City (NV) Sheriff's Office

"It’s a huge priority of this administration to teach policy to our sergeants, and Lexipol’s Daily Training Bulletins help us do that. We are constantly drilling into them that policy will protect them as an individual officer. If they ensure that their people are following policy, even if they’re sued, they will be OK.”

Sgt. Bryan Ward
Cumberland County (PA) Sheriff's Office

"Calling Lexipol an insurance policy doesn’t do it justice, because it doesn’t capture the enormous power that partnering with Lexipol provides.”

Chief Deputy Klint Anderson
Weber County (UT) Sheriff's Office

“We spent a considerable amount of money and effort trying to develop and maintain comprehensive and legally based policies and procedures. Lexipol has relieved us of that burden and provided us with a policy system that we have great confidence in and that we can tailor to suit our particular goals and community standards.”

Sheriff Blaine Breshears
Morgan County (UT) Sheriff's Office

“We had a use of force lawsuit, and as soon as the attorneys discovered that we have Lexipol, they said, ‘We won’t have an issue there.’ Our policies were never in question.”

Lt. Craig Capps
White County (TN) Sheriff's Office

"I would recommend Lexipol to any law enforcement agency, whether three-person or 2,000-person—it makes no difference. The program works.”

Chief John Defore
Hiawatha, KS

“By offering 365 daily training bulletins to my officers, I am saving far more than the cost of the software every year. In fact, I was able to show my commissioners a cost savings by utilizing Lexipol for our policy and policy training needs.”

Captain Jeff Schneider
Yakima (WA) Police Department

“KMS tracks and logs when people acknowledge and accept updates, which is very important, and it lets us track who isn’t getting the updates so we can give them the appropriate attention.”

Chief David Maine
The Village of Hunting Valley (OH) Police Department

“What we had before Lexipol had been around for years. It was like every other policy manual I had seen: It didn’t get the updates it needed. The Lexipol manual is a living, breathing document.”

Chief Deputy Lauren Osborne
Surry County (NC) Sheriff’s Office

“If there’s a change as a result of case law, or a procedure that needs to change, Lexipol does the legwork, sends it to us, we approve it and send it out to our people for acknowledgement—and it’s all documented.”

Sheriff Gerald Antinoro
Storey County (NV) Sheriff’s Office

“Lexipol is one of the best products I have seen in my 30+ years in law enforcement.”

Deputy Chief John McGinty
Simi Valley (CA) Police Department

“You get sued for your policies or you get sued for your actions, or both. You can only do so much about actions. But having Lexipol gives me confidence that if we draw a lawsuit, our policies won’t come under attack.”

Chief Kelly Stillman
Rocky River (OH) Police Department

“I can’t say enough about the positives from a chief’s perspective. I don’t know why everyone isn’t with Lexipol.”

Chief Jeff Wilson
Orofino (ID) Police Department

“The Lexipol Policy Manual is easy to use, it’s convenient and you have peace of mind knowing that you have a thorough manual that is going to stand up to any challenge the agency may face.”

Chief Ralph Maher
Oak Creek (CO) Police Department

“With Lexipol, I know our policy manual is going to be up to date. I can turn my back on it today and tomorrow there will be any needed updates waiting for me. That allows me to focus on some of the other things I have to do as a chief.”

Chief Steven Vaccaro
Mokena (IL) Police Department

“If you compare Lexipol to other policy providers, Lexipol is the only one that has policy that has been vetted by other chiefs, industry experts and lawyers. All you have to do is tailor the policies to your agency’s needs.”

Commander Leslie Burns
Mercer Island (WA) Police Department

“Lexipol provides a huge advantage for agencies pursuing accreditation. The tools take about 60% of the difficulty out of the accreditation process. If you want to be accredited, this is the way to do it.”

Deputy Chief Robin Passwater
Kankakee (IL) Police Department

“If you don’t have Lexipol, even with a full-time person dedicated to policy, there’s almost no way you can keep updated on all the laws and also have the training component. It’s an excellent system.”

Assistant Chief Bill Holmer
Glen Ellyn (IL) Police Department

“It’s a no-brainer for me. Someone is watching for changes to laws for me, and then tweaking the content based on those changes or updates in best practices.”

Lt. Ed Alvarez
Bay Area Rapid Transit (BART) (CA) Police Department

“I like the mobile app because it tells me no matter where I am when I have updates to complete or when people take the DTBs. No matter where I am, I have access. The officers can get real-time updates. Everything is at their fingertips, any time.”

Chief Greg Knott
Basalt (CO) Police Department

“Lexipol gives you peace of mind because the policies that you’re implementing have been reviewed by professionals in the field and by attorneys—not just your agency’s legal counsel.”

Chief Corry Blount
Bartonville (TX) Police Department

“I feel comfortable that when we issue a policy, it covers what it needs to cover. It’s the most comprehensive policy content I’ve used in my career.”

Lt. Victor Pecoraro
Auburn (CA) Police Department

“The updates are super easy because you can pop them open, see the redline versions and be able to edit it on the fly. Once I learned I could do that, I was excited.”

Chief Joseph Morris
Arapahoe Community College (CO) Police Department

“Officers are not infallible. We have limited memories like everyone else. Working under stress presents more challenges. There are times we need to access policies in the field so we are comfortable in our decision making. The mobile application has been great for this!”

Captain Jesus Ochoa
Coronado (CA) Police Department

“Knowing that Lexipol is keeping our policies current means that there isn’t something else for us to worry about. We can focus on our jobs. That definitely gives us peace of mind.”

Chief Steven Vaccaro
Mokena (IL) Police Department

“If you compare Lexipol to other policy providers, Lexipol is the only one that has policy that has been vetted by other chiefs, industry experts and lawyers. All you have to do is tailor the policies to your agency’s needs.”

Jim Franklin, Executive Director
Minnesota Sheriffs' Association, MN

"Lexipol is, indeed, ahead of the curve with their unique risk management solutions in law enforcement. The Minnesota Sheriffs' Association has been eagerly anticipating the release of the Lexipol Custody Manual. Lexipol meets the needs of law enforcement and custodial agencies by recognizing the emerging challenges facing our agencies, and providing comprehensive tools and resources to reduce liability and risk in a professional and highly efficient manner. The Minnesota Sheriffs' Association is proud of its continued partnership with Lexipol."

Close [X]
Close [X]
Close [X]
Close [X]