Last month in the article Facebook Comments Can Get LEOs Fired we barely cracked Pandora’s box of how an officer’s postings on social media might get them in trouble — focusing on the basics of defamation law.
This month, we’ll look at how officers — by virtue of being public employees — have restricted free speech rights. What? You put it all on the line protecting and serving, and you have fewer first amendment rights than the criminals? Yep.
If it makes you feel any better, private employees have no first amendment protections to job actions taken against them for expressing themselves. How can that be?
In lawsuits brought by police and corrections officers claiming retaliatory job action for protected speech, and in online comments by officers, there seems to be miscomprehension about what’s protected speech and what’s not. Let’s see if we can’t clear up some of the confusion.
Free Speech Isn’t Totally Free
When it comes to free speech, the First Amendment says, “Congress shall make no law … abridging the freedom of speech[.]”
We know exceptions have been carved out even to this plain language:
- You can’t falsely yell “fire” in a crowded theater.
- You can’t make terroristic threats, harassing phone calls or cyber bully.
- You can’t create a hostile work environment with trash talk.
Free Speech for Private Employees
Private employees receive no workplace First Amendment protections because there’s no government action involved in their employer sanctions. That doesn’t mean private employees have no protection for their expressions.
The National Labor Relations Act (NLRA) forbids private employers from interfering with restraining or retaliating against employees for engaging in protected concerted activities, which may include complaining or grousing about work conditions, supervisors and the organization. Note: The NLRA does not cover public employees.
Anti-discrimination laws may protect religious and ethnic expressions. An employer can’t punish a private employee for his religion. There may also be whistleblower protections and union or other job contract protections for private employees.
But when it comes to the First Amendment protecting private employee speech it doesn’t. Private employees must look to statutes, employment contracts, policies and procedures (or the lack thereof), union regulations or some other protection.
Free Speech for Public Employees
As public employees, law enforcement officers have some workplace First Amendment protection for their expressions, but it’s limited.
In an FBI Law Enforcement Bulletin titled Speech and the Public Employee, Lisa Baker provides a thorough discussion of U.S. Supreme Court and other with all the legal citations you could hope for — and more. This article provides a nutshell version [minus complete citations].
For an officer’s speech (this includes oral and written, verbal, photographic, videographic, musical, performance art, etc.) to be protected by the First Amendment:
1. It must touch on a matter of public concern, and;
2. It must be made as a citizen — not as part of the officer’s official duties, and;
3. Even if it addresses a matter of public concern, the officer’s interest in the speech must outweigh the agency’s substantial interest in promoting and maintaining efficient operations.
If the officer does not make the speech as a citizen, it is not protected — even if it is a matter of public concern. Similarly, if it isn’t about a matter of public concern, it is not protected, even if it is made as a private citizen. Only if the first and second conditions are met, does the court even consider the balancing in the third.
These three requirements apply to internet expressions of speech such as Facebook, MySpace, YouTube, LinkedIn, Twitter, Digg, Flickr, etc.
The Public Concern Requirement
The public concern requirement is determined by looking at the content, form and context of the speech. In Connick v. Myers, an assistant DA, unhappy about a transfer, prepared and circulated a questionnaire within her office soliciting co-workers’ opinions on:
- Office morale;
- Work assignments;
- The need for a grievance committee;
- Confidence in management; and
- Whether employees felt pressured to work on political campaigns.
The Supreme Court concluded that only the last issue possibly touched on a matter of public concern. The remaining topics were internal workplace matters and the DA was justified in firing Myers for insubordination. It’s interesting to note that this speech would most likely have been protected concerted activities under the NLRA, had Myers been a private employee.
The Supreme Court elaborated on the public concern requirement a case involving off duty “speech” by a police officer. In City of San Diego v. Roe, the Court stated,
“[P]ublic concern is something that is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public at the time of the publication. …[T]ypically matters concerning government policies that are of interest to the public at large.”
The Court had no difficulty deciding that Roe’s expressions — which included videotapes of him stripping out of a generic police uniform and masturbating that he sold online along with San Diego police uniforms — were not matters of public concern.
The Private Citizen vs. Official Capacity Requirement
Only recently, in Garcetti v. Ceballos (2006), did the Supreme Court rule that speech by a public employee, even if it’s a matter of public concern, isn’t protected if it’s made pursuant to the employee’s official duties.
Ceballos, a deputy district attorney, concluded an affidavit used by police to obtain a warrant contained misrepresentations. He expressed his concerns to his supervisors and prepared a memorandum recommending dismissal of the criminal case. The DA’s Office proceeded with the case and Ceballos testified for the defense in a hearing challenging the search warrant. The trial court rejected the motion to dismiss the warrant.
Ceballos claimed he was retaliated against in violation of his First Amendment rights when he was reassigned to another office and denied a promotion. The Supreme Court rejected this claim, holding:
“[W]hen public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications form employer discipline. …Restricting speech that owes it existence to a public employees professional responsibilities does not infringe on any liberties the employee might have enjoyed as a private citizen. It simply reflects the exercise of employer control over what the employer itself has commissioned.”
The Garcetti opinion means that even honorable attempts to correct wrongdoing may not be protected by the First Amendment. Two cases, however correctly decided under the law, sadly make that point.
Ronald Vose, a sergeant in charge of narcotics, voiced concerns to upper management about wrong doings by investigators in a multi-agency major case squad that might impact drug investigations under his supervision. He was told to “get along” or transfer to the patrol unit. Faced with a demotion, he resigned and sued claiming a retaliatory violation of his First Amendment rights.
The Seventh Circuit concluded that Vose’s speech fell within his official duties to ensure the proper operation of the narcotics program. Accordingly, the court held:
“[W]e find that Vose’s speech, albeit an honorable attempt to correct alleged wrongdoing, was not protected by the First Amendment.”
Subsequently, in Callahan v. Fermon, the Seventh Circuit overturned a sizable jury verdict in favor of an officer who asserted that individuals may have been wrongfully convicted in a murder case and a cover-up of the matter was politically motivated. After conveying his concerns to his supervisors, he was taken off the murder investigation. He went to IA, which decided to take no action. The officer was subsequently transferred to another position, which he claimed was in retaliation.
The appeals court concluded the officer’s speech was outside First Amendment protections because he spoke pursuant to his official duties and not as a citizen. Although Garcetti may deny First Amendment protection to even honorable speech, recall that the Supreme Court in that case also noted the significant role of whistleblower statutes and labor codes to protect employees who dare to expose government misconduct.
Free Expression vs. Efficient Operations
Assuming an officer expresses herself as a private citizen on a matter of public concern, a court will still weigh the officer’s First Amendment interest against the employing agency’s interest in its operations. That happened in Nixon v. City of Houston.
Amongst other incidents for which he was suspended and eventually fired, Nixon, an officer with the Houston PD, regularly authored an opinion column in his off-duty time for a local publication. Nixon identified himself as a police officer and wrote about Houston police activities, policies and his own duties.
Nixon didn’t have authorization to publish his column, so, when a citizen complained about his articles, the chief ordered an investigation. The investigation found that Nixon made “caustic, offensive and disrespectful” statements about citizen groups, especially minorities, women and the homeless.
Ruling against Nixon, the Fifth Circuit held that even if Nixon were commenting as a citizen on matters of public concern, the balancing of the HPD’s interest in maintaining positive, working relations in the community was so heavily in its favor that Nixon’s speech was not protected.
Now that we have a legal framework for figuring out when an officer’s speech — on or off duty — is or isn’t protected, next month we’ll look at some more real cases of Officer Road Kill on the Information Highway.
After that, we’ll look at how the power of the Internet is being used to cybervet police applicants, recruits, and officers — and not just by police agencies. What are officers’ privacy rights when applying for a job, a promotion or testifying in court?