Northern Virginia lawyer on First Amendment protection for police to voice discontent

First Amendment protects police griping publicly about matters of public concern

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Dec 25, 2016 First Amendment protects police griping publicly about matters of public concern

If the police officer in my criminal defense case is sick and tired about his agency’s purported bureaucratic nonsense, I want to know both about the alleged nonsense and the officer’s dissatisfaction.

The City of Petersburg, Virginia, tried to put the lid on that by issuing a First Amendment-violative overly vague and overbroad general order update, placing excessive limits on police officers’ use of social media use during their off-duty time. Liverman, et al. v. Petersburg, et al. ___ F.3d ___ (4th Cir., Dec. 15, 2016).

The general order’s 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.'”

The public concern provision states:

“‘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 police department speaks out of both sides of its mouth, by adding that the department “strongly discourages employees from posting information regarding off-duty activities.” The general order “provides that violations will be forwarded to the Chief of Police for ‘appropriate disciplinary action.’”

One Facebook string showed deep discontent among several police officers about the agency’s purported penchant for promoting officers with too little experience to supervisory positions. One posting underlined the importance of having at least five years of policing experience even to know the job, pointing to having reviewed FBI data. What great fodder such data could be to cross-examine a rookie police officer. Another poster said he could not wait until his four years arrived (until the vesting of his retirement, apparently).

As a result of this Facebook string, the Petersburg police placed two of its officers on six months or probation, for starters.

Congratulations to the officers for challenging this First Amendment-violative limit on social media activity, and for appealing from the trial court’s ruling rejecting most of their claims.

In rejecting the foregoing quoted general order provisions First Amendment-violative, Liverman said:

“While we are sensitive to the Department’s need for discipline throughout the chain of command, the policy here and the disciplinary actions taken pursuant to it would, if upheld, lead to an utter lack of transparency in law enforcement operations that the First Amendment cannot countenance.”

Liverman provides an overview of the governing law as follows:

“The legal framework governing public employee speech claims is well known. Public employees may not ‘be compelled to relinquish the First Amendment rights they would otherwise enjoy as citizens to comment on matters of public interest.’ Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968). Underlying this principle is the recognition that ‘public employees are often the members of the community who are likely to have informed opinions as to the operations of their public employers.’ City of San Diego v. Roe, 543 U.S. 77, 82 (2004) (per curiam). Nonetheless, a citizen who accepts public employment ‘must accept certain limitations on his or her freedom.’ Garcetti v. Ceballos, 547 U.S. 410, 418 (2006). Government employers enjoy considerable discretion to manage their operations, and the First Amendment “does not require a public office to be run as a roundtable for employee complaints over internal office affairs.” Connick v. Myers, 461 U.S. 138, 149 (1983).

If governments do not want to get into First Amendment hot water, they should err on the side of overprotecting rather than underprotecting free expression.

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