Mimesis Law
24 January 2017

Police Departments Can’t Outlaw “Negative Comments” Says 4th Circuit

December 16, 2016 — The 4th Circuit Court of Appeals ruled that it is unconstitutional for a police department to discipline officers for violating its “social networking” policies, under which “[n]egative 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.”[1]

Also,

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.

Two City of Petersburg police officers were a little disgruntled about police department policy. Rookies—officers with less than five years experience—were being asked to train other officers how to do their jobs properly. So Officer Herbert Liverman put up a post on Facebook straight out of the curmudgeon’s handbook:

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 4 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.

Another officer piped up to say he agreed, and the two had a lively discussion, complaining about officers who were promoted too soon, without relevant experience and about the leadership of the department. As a result, both officers were placed on disciplinary probation and denied the possibility of promotion to sergeant.

Now listen, if you don’t work for the government, do not try this at home. There is generally nothing illegal about a private company firing an employee for what she posts online. Private companies aren’t bound by the First Amendment, and they aren’t bound to provide you with any kind of due process. If you aren’t part of a protected class, aren’t engaging in protected labor activity and haven’t recently reported misconduct through the proper channels, your ass can be out the door before you’ve had time to check for the first “like” for even relatively benign complaints about your employer.

But government officials are different. They have protections under the First Amendment, and that means that, as long as they are speaking on a matter of public concern not related to their jobs, they can’t be terminated for speaking out publically. The alternative might be pretty grim—what if all the most knowledgeable people in our government couldn’t complain about the way it did business in their own foremost area of expertise? How, aside from anonymous whistleblowing, would the public get a fair idea for who was doing a good job?

Because of those protections, the officers sued, saying that a policy that prevented them from saying anything negative about local law enforcement violated the First Amendment. The 4th Circuit Court of Appeals agreed, pointing out that whether a police department was functioning properly was a “paradigmatic” issue of public concern.

And that was an important point, because if the officers weren’t talking about a matter of public concern, they’d get no First Amendment protection at all. So an officer complaining about poor training, for instance, might be talking about public concern. That same officer saying that his supervisor was a skank wouldn’t be likely to get the same benefit.

Here, the department tried to argue that both officers were really just making personal complaints about their own lack of advancement, but the court didn’t bite, pointing out that, as a whole, they were really talking about what was best for the public.

The police department argued that, even if the officers were speaking out on matters of public concern, the harm to the department from negative comments about it almost certainly outweighed any involved constitutional rights. Namely, the department argued that as a “paramilitary organization” (truly, they called themselves that), they had a special obligation to maintain cohesion and avoid divisiveness, and that meant that they should have broad deference to censor their employees just as the military does.

But the Court didn’t agree. Just because “divisiveness is bad” doesn’t mean that a police department presumably made up of adults can’t handle some occasional bitching from its employees without collapsing into a puddle of tears and dead bystanders.

Finally, the department leaned back across its last line of defense and asked for qualified immunity, but fell short. The Court held that it could be sued.

That’s not to say that matters ended happily for Officer Livermore. See, he had a tendency to say things he shouldn’t on stuff that wasn’t necessarily a matter of public concern. As the department responded to Livermore’s subpoenas for the lawsuit, it came across some sexually harassing texts he had sent a female officer. Those were not constitutionally protected, and it came out that he had been having sex with another officer while on duty. At trial, it might be tough to get damages for not being promoted when there were great reasons for firing you just around the corner.

While I can understand some Fault Lines readers not being thrilled at the idea of additional job protections for officers, these free speech rulings serve an important purpose. We need the perspective of good officers. And we need to know what’s going on inside our police departments. Here, a win for police is a win for the people being served. Good for us.

[1] Bureaucrats are addicted to talking like lawyers even when they’re just making stuff up as they go along.

No Comment

Leave a Reply

*

*

POPULAR POSTS