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Dealing with Opposition to Social Networking Policies, Part 1

Written by Cara Donlon-Cotton

Many law enforcement agencies have instituted, or are trying to institute, social networking polices only to experience some backlash from line officers, union groups and/or fraternal organizations. As with any new initiative or policy, there will always be opposition and a degree of fear of change. And, as with any new initiative or policy, so long as the rationale and wording are sound, the opposition can be as noisy as it wants to be, but the policy will still stand.

In July 2010, Law and Order ran a sample Social Media Policy that many agencies chose to implement (www.hendonpub.com/resources/articlearchive/details.aspx?ID=207930). Other agencies have implemented their own version of a social networking policy, while others chose to use a different sample policy as their guide.

No matter what version you are using, you are bound to hear the same arguments: The policy violates the officer’s right to free speech (1st Amendment); restrictions to online activity violate the officer’s right to privacy and is a due process violation (1st and 14th Amendments); the policy violates the Federal Stored Communications Act.

This is the first in a series of three articles that will address the three concerns listed above and offer some relevant case law and legal decisions that address these issues.

Free Speech

Several recent court cases have addressed the freedom of online speech and how it specifically relates to a law enforcement officer’s activities. In 2004, the Supreme Court held in City of San Diego v. Roe that a police officer’s off-duty online speech and actions could be limited by his employing government agency. In rendering this decision, the Court reversed an appellate decision that referenced a 1995 case that says government employees can publicly say what they want when they’re not working so long as that speech is unrelated to their jobs (United States v. Treasury Employees).

From City of San Diego, California et al. v. John Roe: The Court of Appeals’ reliance on United States v. Treasury Employees was seriously misplaced. Although Roe’s activities took place outside the workplace and purported to be about subjects not related to his employment, the SDPD demonstrated legitimate and substantial interests of its own that were compromised by his speech.

Far from confining his activities to speech unrelated to his employment, Roe took deliberate steps to link his videos and other wares to his police work, all in a way injurious to his employer. The use of the uniform, the law enforcement reference in the Web site, the listing of the speaker as “in the field of law enforcement,” and the debased parody of an officer performing indecent acts while in the course of official duties brought the mission of the employer and the professionalism of its officers into serious disrepute.

The Court of Appeals noted the city conceded Roe’s activities were “unrelated” to his employment. In the context of the pleadings and arguments, the proper interpretation of the city’s statement is simply to underscore the obvious proposition that Roe’s speech was not a comment on the workings or functioning of the SDPD.

It is quite a different question whether the speech was detrimental to the SDPD. On that score, the city’s consistent position has been that the speech is contrary to its regulations and harmful to the proper functioning of the police force. The present case falls outside the protection afforded in United States v. Treasury Employees.

In 2007, the Ninth Circuit Court of Appeals denied a police officer’s appeal that his firing violated his First Amendment rights to free speech. In Dible v. City of Chandler, the court referenced the Supreme Court’s decision in Roe as part of its justification in agreeing with the city’s actions. It addressed the framework established by the Court as to when it is appropriate to regulate a government employee’s speech and then had harsh words for an offending police officer while also referencing other decisions that clearly state a police officer will be held to a higher standard.

They held, “In any event, the interest of the City in maintaining the effective and efficient operation of the police department is particularly strong. It would not seem to require an astute moral philosopher or a brilliant social scientist to discern the fact that Ronald Dible’s activities, when known to the public, would be ‘detrimental to the mission and functions of the employer.’ And although the government’s justification cannot be mere speculation, it is entitled to rely on ‘reasonable predictions of disruption,’” (Waters v. Churchill).

Police departments, and those who work for them, are engaged in a dangerous calling and have significant powers. The public expects officers to behave with a high level of propriety and, unsurprisingly, is outraged when they do not do so. The law and their own safety demands that they be given a degree of respect, and the sleazy activities of Ronald and Megan Dible could not help but undermine that respect. Nor is this mere speculation.

Almost as soon as Ronald Dible’s indecent public activities became widely known, officers in the department began suffering denigration from members of the public, and potential recruits questioned officers about the Dibles’ Web site. Moreover, the department feared that the recruiting of female officers would be affected because of what it seemed to say about the climate at the department. That is not rank speculation.

In a similar case involving police officers’ public sexual activities, the 11th Circuit Court of Appeals noted that this kind of activity by officers, once known, could not help but interfere with the functions and mission of the police department because, “it reflected on [deputies’] fitness as deputies and undermined public confidence” in the department, (Thaeter v. Palm Beach County Sheriff’s Office).

As the Second Circuit Court of Appeals has pointed out, even where the unrelated expression is a matter of public concern—say a comment on race relations—police officers “are quintessentially public servants” and “part of their job is to safeguard the public’s opinion of them.”

Thus, said the court, the actions of the police department were not due to a heckler’s veto, but rather an example of the government’s accounting for the public’s perception of the officers’ actions when it considered the potential for disruption of the department’s functions.

The next article in this series will be, “Right to Privacy and Federal Stored Communications Act.”

Cara Donlon-Cotton is a reformed newspaper reporter and a former course developer and instructor with the Georgia Public Safety Training Center. She currently teaches Media Relations and Public Relations to local law enforcement agencies. She can be reached at cdonloncotton@yahoo.com or through the Public Safety Training and Education Network at http://psten.com.

Published in Law and Order, Jan 2011

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