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Social Media: Risk and Liability Issues

Written by Doreen Jokerst, Randy Means

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. 



Agency Use

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 grammar—before posting.

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 investigation.

 

Individual Use

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.



Balance

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 rbmeans@aol.com.

 

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.

Published in Law and Order, Jul 2014

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Comments

Comment on This Article

Great information.

By Captain Mike Harris, Charlotte Mecklenburg Police

This is a great and informative article. This issue is a critical and vital topic for agencies countrywide. With the increase in social media options avaliable, it becomes a very important topic for us to deal with. Lt. Jokerst and Randy Means have presented a valuable article for law enforcement executives. Great work.

Submitted Jul 24 at 9:13 PM

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