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City’s social networking policy infringed on police officer’s First Amendment rights

By Ronald Miller, J.D.

A city’s social networking policy was unconstitutionally overbroad and disciplinary measures taken against two police officers pursuant to that policy were also impermissible, ruled the Fourth Circuit. The officers alleged that the policy under which they were disciplined for making Facebook comments while off-duty infringed on their First Amendment rights. As an initial matter, the appeals court found that regulations on social media questions were amenable to the traditional analysis set forth in Connick and Pickering. Further, noting the “astonishing breadth” of the social networking policy’s language, the court found its patent overbreadth negated a police chief’s qualified immunity defense. On the other hand, the appeals court found no merit to the officers’ retaliation claims, which involved investigations for alleged police misconduct independent of any issues of free speech (Liverman v. City of Petersburg, December 15, 2016, Wilkinson, H.).

Social networking policy. In April 2013, the police chief issued a general order revising the police department’s social networking policy governing officers’ use of social media platforms. The preface to the revised policy prohibited in sweeping terms the dissemination of any information that would tend to discredit or reflect unfavorably upon the police department or any other city department or employee. Of particular concern were provisions labeled by the court as the “negative comments provision,” which prohibited negative comments on internal operations, and the “public concern provision,” which prohibited comments that disrupted the workforce. The policy also “strongly discourages employees from posting information regarding off-duty activities.”

This case concerns the department’s application of the policy to a conversation between two officers. While off-duty, one officer posted a message on his Facebook page critical of rookie cops becoming instructors. The second officer agreed with the comments, and asserted that officers should be promoted by experience. The officers posted a series of comments in the post.

Disciplinary action. Two sergeants learned of the exchange and notified the police chief, who determined that the statements violated the social networking policy and instructed the sergeants to discipline the officers. Each officer received an oral reprimand and six months’ probation, but they were advised that such discipline would not affect their eligibility for promotion. Several weeks later, however, the chief altered the qualifications for promotion. The new protocol expressly excluded officers on probation from participating in the promotion process. Accordingly, when the officers applied for open sergeant positions, they were notified that they were ineligible to sit for the promotional exam.

After the officers indicated that they would challenge the disciplinary actions, they were subjected to several complaints and investigations. One officer resigned before receiving a notice of termination. Thereafter, they filed a complaint under Sec. 1983, seeking damages for violations of their First Amendment rights. Specifically, they claimed that the social networking policy infringed their free speech rights.

Qualified immunity. The district court granted summary judgment in favor of one of the officers on his claim that the social networking policy infringed his right to free speech, but nonetheless found that the police chief was entitled to qualified immunity because the policy fell within a gray zone. The court concluded that qualified immunity also shielded the chief against the challenge to the disciplinary action because the contours of protected speech in this area were not clearly established. With regard to the second officer, the district court denied relief on his challenges to the policy and the discipline, holding that his speech was purely personal and thus not protected by the First Amendment. The court also determined that the subsequent internal investigations were not retaliatory.

Speech infringement. On appeal, the Fourth Circuit determined that the department’s broad social networking policy regulated officers’ rights to speak on matters of public concern. It found that the restraint provided under the policy was a virtual blanket prohibition on all speech critical of the government employer. For instance, the appeals court observed that the explicit terms of the “negative comments provision” prevented the officers and any other officer from making unfavorable comments on the operations and policies of the department.

The appeals court stressed that it did not discount the capacity of social media to amplify expressions of rancor and vitriol, with all its potential disruption of workplace relationships that Connick condemned. Nevertheless, it observed that social networking sites like Facebook have also emerged as a hub for sharing information and opinions with one’s larger community.

Because the social networking policy unmistakably imposed a significant burden on expressive activity, the appeals court next considered whether the department had adequately established “real, not merely conjectural” harms to its operations. Here, the department failed to satisfy its burden of demonstrating actual disruption to its mission. Apart from generalized allegations of budding “divisiveness,” the police chief presented no evidence of any material disruption arising from the officers’ comments. The court also rejected the city’s contention that the “public concern provision” significantly narrows the reach of the policy. The milder language in a single provision did not salvage the unacceptable overbreadth of the social networking policy taken as a whole.

Challenges to discipline. The appeals court also found the district court erred in dismissing the officers’ challenges to the department’s disciplinary actions. Applying the traditional Connick/Pickering three-part test adopted by the Fourth Circuit to determine whether a public employee has sustained a First Amendment challenge to an adverse employment action, the appeals court determined that the officers spoke on matters of public concern. They were not airing personal grievances but rather, were joining an ongoing public debate about the propriety of elevating inexperienced police officers to supervisory roles.

The second and third prongs of the Connick/Pickering inquiry were not in genuine dispute. Serious concerns regarding officer training and supervision are weighty matters that must be offset by an equally substantial workplace disruption, the appeals court observed. The police chief failed to establish a reasonable apprehension that the officers’ social media comments would meaningfully impair the efficiency of the workplace. Finally, the city did not seriously dispute that the officers’ Facebook comments were a substantial factor in the decision to discipline them. Accordingly, the appeals court concluded that the discipline they received pursuant to the social networking policy was unconstitutional.