The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Thursday's U.S. Court of Appeals for the 4th Circuit decision in Liverman v. City of Petersburg holds that a police department social media policy was overbroad and thus violated the First Amendment:
The central provision of the policy, which we will refer to as the Negative Comments Provision, states:
Negative comments on the internal operations of the Bureau, or specific conduct of supervisors or peers that impacts the public's perception of the department is not protected by the First Amendment free speech clause, in accordance with established case law.
Another provision, which we label the Public Concern Provision, specifies:
Officers may comment on issues of general or public concern (as opposed to personal grievances) so long as the comments do not disrupt the workforce, interfere with important working relationships or efficient work flow, or undermine public confidence in the officer. The instances must be judged on a case-by-case basis.
The policy nonetheless "strongly discourages employees from posting information regarding off-duty activities" and provides that violations will be forwarded to the chief of police for "appropriate disciplinary action."
The court's reasoning:
The particular attributes of social media fit comfortably within the existing balancing inquiry [under the Pickering v. Board of Ed. (1968) test]: A social media platform amplifies the distribution of the speaker's message—which favors the employee's free speech interests—but also increases the potential, in some cases exponentially, for departmental disruption, thereby favoring the employer's interest in efficiency. What matters to the First Amendment analysis is not only the medium of the speech, but the scope and content of the restriction.
Here we deal with a broad social networking policy setting forth the parameters of public employee speech. In United States v. Nat'l Treasury Employees Union(1995), the Supreme Court … held that "the Government's burden is greater with respect to this statutory restriction on expression than with respect to [the] isolated disciplinary action[s]" in Pickering and its progeny. Accordingly, "[t]he Government must show that the interests of both potential audiences and a vast group of present and future employees in a broad range of present and future expression are outweighed by that expression's 'necessary impact on the actual operation' of the Government." Further, the government "must demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way." …
We begin by noting the astonishing breadth of the social networking policy's language. The policy seeks to prohibit the dissemination of any information on social media "that would tend to discredit or reflect unfavorably upon the [Department]." In particular, the Negative Comments Provision proscribes "[n]egative comments on the internal operations of the Bureau"—which could be just about anything—or on the "specific conduct of supervisors or peers"—which, again, could be just about anything.
The interests of "present and future employees" and their "potential audiences" in such speech is manifestly significant. We do not, of course, discount the capacity of social media to amplify expressions of rancor and vitriol, with all its potential disruption of workplace relationships that Connick v. Myers (1983) condemned. But social networking sites like Facebook have also emerged as a hub for sharing information and opinions with one's larger community.
And the speech prohibited by the policy might affect the public interest in any number of ways, including whether the Department is enforcing the law in an effective and diligent manner, or whether it is doing so in a way that is just and evenhanded to all concerned. The Department's law enforcement policies could well become a matter of constructive public debate and dialogue between law enforcement officers and those whose safety they are sworn to protect. After all, "[g]overnment employees are often in the best position to know what ails the agencies for which they work." But this policy will cut short all of that. …
Because the Department's social networking policy unmistakably imposes a significant burden on expressive activity, we next consider whether the Department has adequately established "real, not merely conjectural" harms to its operations. Chief Dixon's primary contention is that divisive social media use undermines the Department's interests in maintaining camaraderie among patrol officers and building community trust.
These are, to be sure, legitimate interests. "When close working relationships are essential to fulfilling public responsibilities, a wide degree of deference to the employer's judgment is appropriate." And such deference applies with special force to police departments because they are "paramilitary—discipline is demanded, and freedom must be correspondingly denied."
Here, however, the Department fails to satisfy its burden of demonstrating actual disruption to its mission. Apart from generalized allegations of budding "divisiveness" and claims that some "patrol officers sought [shift] transfers," Chief Dixon presented no evidence of any material disruption arising from plaintiffs'—or any other officer's—comments on social media.
We do not deny that officers' social media use might present some potential for division within the ranks, particularly given the broad audience on Facebook. But the speculative ills targeted by the social networking policy are not sufficient to justify such sweeping restrictions on officers' freedom to debate matters of public concern.
Defendants' fallback argument is that, even if the Negative Comments Provision itself is overbroad, the Public Concern Provision significantly narrows the reach of the social networking policy. This second provision, which permits comments on "issues of general or public concern … so long as the comments do not disrupt the workforce," is ostensibly more aligned with the case-by-case analysis of Connick and Pickering.
But the milder language in a single provision does not salvage the unacceptable overbreadth of the social networking policy taken as a whole. Indeed, the Public Concern Provision does not purport to nullify or otherwise supersede the blanket censorship endorsed by the Negative Comments Provision. If the Department wishes to pursue a narrower social media policy, then it can craft a regulation that does not have the chilling effects on speech that the Supreme Court deplored. We cannot, however, allow the current policy to survive as a management and disciplinary mechanism.
The court also held that two police officers (Herbert Liverman and Vance Richards) were unconstitutionally disciplined for their comments:
While off-duty on June 17, 2013, Liverman posted a message to his Facebook page:
Sitting here reading posts referencing rookie cops becoming instructors. Give me a freaking break, over 15 years of data collected by the FBI in reference to assaults on officers and officer deaths shows that on average it takes at least 5 years for an officer to acquire the necessary skill set to know the job and perhaps even longer to acquire the knowledge to teach other officers. But in todays world of instant gratification and political correctness we have rookies in specialty units, working as field training officer's and even as instructors. Becoming a master of your trade is essential, not only does your life depend on it but more importantly the lives of others. Leadership is first learning, knowing and then doing.
More than 30 people "liked" or commented on this post. Richards, also off-duty at the time, commented as follows:
Well said bro, I agree 110%… Not to mention you are seeing more and more younger Officers being promoted in a Supervisor/ or roll. It's disgusting and makes me sick to my stomach DAILY. LEO Supervisors should be promoted by experience… And what comes with experience are "experiences" that "they" can pass around to the Rookies and younger less experienced Officers. Perfect example, and you know who I'm talking about….. How can ANYONE look up, or give respect to a SGT in Patrol with ONLY 1 1/2yrs experience in the street? Or less as a matter of fact. It's a Law Suit waiting to happen. And you know who will be responsible for that Law Suit? A Police Vet, who knew tried telling and warn the admin for promoting the young Rookie who was too inexperienced for that roll to begin with. Im with ya bro….smh [Footnote: "Smh" is an acronym for "shaking my head."]
Later that day, Liverman responded to Richards with a comment of his own:
There used to be a time when you had to earn a promotion or a spot in a specialty unit…but now it seems as though anything goes and beyond officer safety and questions of liability, these positions have been "devalued"…and when something has no value, well it is worthless.
Richards then replied:
Your right….. The next 4yrs can't get here fast enough… From what I've been seeing I don't think I can last though. You know the old "but true" saying is…. Your Agency is only as good as it's Leader(s)… It's hard to "lead by example" when there isn't one….smh
Among those who liked or commented on the Facebook postings, most were current or former department officers.
Here's the court's reasoning on the challenge to the discipline (as opposed to the facial challenge to the policy):
When evaluating an ex post disciplinary action, rather than an ex ante restraint on speech, the nature of our review is narrower than the analysis under NTEU. In this context, our court has adopted the traditional Connick/Pickering three-part test to determine whether a public employee has sustained a First Amendment challenge to an adverse employment action. First, we determine whether the employee spoke as a citizen on a matter of public concern. Second, we evaluate whether the employee's interest in First Amendment expression outweighs the employer's interest in the efficient operation of the workplace. And finally, we decide whether the protected speech was a substantial factor in the employer's decision to take adverse employment action. …
Serious concerns regarding officer training and supervision are weighty matters that must be offset by an equally substantial workplace disruption. Chief Dixon failed to establish a reasonable apprehension that plaintiffs' social media comments would meaningfully impair the efficiency of the workplace. … [And] defendants do not seriously dispute that plaintiffs' Facebook comments were a substantial factor in the decision to discipline them. …
Plaintiffs raised serious concerns regarding the Department's training programs and the promotion of inexperienced supervisors, both of which are matters of public concern. As this court has held time and again, it was clearly established law that such speech is protected by the First Amendment.
We appreciate the need for order and discipline in the ranks. At the same time, we cannot countenance an arm of government with such enormous powers being removed to this extent from public scrutiny.
This is not an all- or-nothing matter; there is a balance to be struck. But the Department's social networking policy, and the disciplinary actions taken to enforce it, lean too far to one side.
Thanks to Michael F. Smith for the pointer.