In law enforcement, as in society more generally, use of
social media by organizations and individuals is now common. It provides an
agency a convenient and relatively inexpensive means to market itself and
inform its community of useful information. Of course, individual employees use
social media for personal information, communication and entertainment. Agency
websites are a given and some techno-tuned agencies even use Facebook, YouTube,
Twitter, Instagram and more, as do their employees.
All this can be very positive, but it can also create dangers
and liability problems. Law enforcement agencies must carefully regulate their
own use of social media and also that of their employees. But regulating
employee speech involves a complex set of legal and practical difficulties,
given the presence of sensitive First Amendment issues.
Police agencies using social networking as a means to
communicate with the public but should ensure they have current policies that
provide clear guidance to those posting and pushing out departmental
information. Requirements and prohibitions should be explicit. The Public
Information Officer or person performing that role must know what kind of
information he/she can decide to disseminate and what information would require
some level of supervisory approval—as might, for example, information on a
criminal investigation. All communications should be reviewed by command level
personnel for appropriateness and (maybe by someone else) for spelling and
It is very common, and very important, for agency background
investigators to check an applicant’s personal social networking sites for
relevant insights into important hiring issues. Perhaps this check would be
done without notice to the applicant in order to make the inquiry more
meaningful. This type of investigation may identify a number of potential
concerns, from binge drinking to violent or sadistic propensities to racism—or
more mundane, but still troubling, insights into the applicant’s character
and/or judgment. The list of other possible uses of social media by an agency
goes on considerably, and obviously includes use in regular criminal
The starting point here is that departments must understand
and respect the First Amendment rights of its employees in social networking,
as in free speech more generally. Law enforcement employees have the right to
speak as private citizens on matters of public concern, but the rights of
public employees, perhaps especially law enforcement employees, are somewhat
different from those of ordinary private citizens.
While public employees have the right to speak publicly—even
blow the whistle—as private citizens on matters of public concern, like
systemic corruption in a criminal justice agency, lesser and perhaps more
ordinary concerns may not be First Amendment protected. Still, for example, a
police employee acting as a private citizen would have a First Amendment
protected right to send a letter to the editor of a newspaper complaining about
poor pay of law enforcement officers and urging that pay be improved.
But in the important case of Garcetti v. Ceballos, 547 U.S.
410 (2006), the United States Supreme Court held that “when 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 from employer discipline.” Partly because this
case involved a criminal justice/law enforcement employee, it is worth a close
look at its facts.
Richard Ceballos was a Deputy District Attorney in Los Angeles when asked by
defense counsel to review the accuracy of an affidavit in support of a crucial
search warrant in that attorney’s case. Ceballos agreed to investigate; he
found there was misinformation in the affidavit and drafted a memo to his
superiors recommending dismissal of the case. His superiors chose to proceed
with the prosecution. Ceballos was called as a trial witness by the defense
where he recited the substance of his investigative findings, to include what
he believed was a misrepresentation in the search warrant affidavit. The judge
ultimately rejected defense counsel’s attack on the search warrant.
Ceballos was later transferred, re-assigned and denied a
promotion. Ceballos then filed a §1983 action (federal constitutional rights
lawsuit) in federal court claiming that his superiors, primarily District
Attorney Garcetti, had violated his
First Amendment rights by retaliating against him for his alleged exercise of
First Amendment rights, first in his memo and then in his testimony. Appeals processes took the parties all the
way to the United States Supreme Court. Holding that, on these facts, Ceballos
did not have a First Amendment right to tell what his employer didn’t want
told, the Court stressed the “significance of the relationship between the
person speaking and their employment.”
In this case, Ceballos wasn’t just airing the laundry of the
day in law enforcement, he was offering his view that a law enforcement officer
has been untruthful in a sworn statement in support of a search warrant
application. Still his “speech” was not protected by the First Amendment, so
said the U.S. Supreme Court. It mattered in this case that Ceballos’ “speech”
was not done publicly as a private citizen. Had it been, the case might have
been decided differently.
Just as in the Garcetti case, law enforcement officers are public employees in
positions of trust who might disclose information and/or express perspectives
and opinions contrary to the interests of their employer and its operations.
Some level of control and regulation over an officer’s words and actions is
necessary to protect the employer’s interests in effectiveness and reputation,
including the personal and professional reputation of its members—and the
courts recognize that.
A law enforcement employee does not have a First Amendment
right, free from administrative discipline, to air police business to his/her
several hundred (thousand) friends, or to engage in “speech” that would tend to
bring himself and/or his employing agency into disrepute or public distrust.
Officers should be mindful that the words and images they
post and send become part of the worldwide electronic domain. An officer
posting that, “Dealing with assholes and idiots every day makes me want to put
a bullet in somebody’s head,” is a problem. Both criminal defense attorneys and
civil plaintiffs’ attorneys will access officers’ personal social networking
sites in efforts to discredit the officer’s testimony in court and/or show that
the officer’s alleged misdeeds are part of a flawed lifestyle or psyche.
Even writing on an officer’s personal Facebook page that
they are constantly having to do police work when already exhausted could cast
doubt on their fitness for duty should a critical incident later occur. Posting
photos of a crime scene or drugs that were confiscated can be harmful to the
successful prosecution of that case. If officers post pictures and/or related
comments portraying hatred, sadistic tendencies, propensities toward violence
and such, or that otherwise cast doubt on their morals or even their judgment,
they provide defense counsel an open door to attack their decision-making
abilities and their integrity, character and credibility.
This ultimately could be detrimental to the outcome of
criminal or civil cases, cause embarrassment to the officer and the agency, and
damage community relations and trust. Of course, such things as confidential or
sensitive information, photographs or information on those working undercover
assignments, or anything similar should be prohibited.
Balancing the constitutional rights of officers while
protecting the integrity and credibility of the agency and employees is
definitely a legal minefield. It must be done through well-defined policies for
social media usage, followed by monitoring and enforcement. Department
leadership, ideally with advice from expert counsel, must determine rather
specifically the conduct and information to limit or even prohibit.
Simply prohibiting communication that “tends to bring the
agency or its members into disrepute” does not provide much proactive real-life
guidance to a typical employee. Ideally, these problems would be solved
up-front without the need for interpretive employee-employer litigation.
Randy Means is a
partner in Thomas & Means, a law firm specializing entirely in police
operations and administration. He has served the national law enforcement
community full time for more than 30 years and is the author of “The Law of
Policing,” which is available at LRIS.com. He can be reached at firstname.lastname@example.org.
Lt. Doreen Jokerst is
a 15-year veteran of the Parker Police Department, a suburban Denver-area
agency. She currently heads its Professional Standards Unit and operates its
early warning and internal-affairs tracking system.