Clowns, the Police, and Free Speech
October 7, 2016 (Fault Lines) – Clowns are creepy, and are making the news lately so that everyone is commenting on them. They are being reported in cemeteries near college campuses, being used to threaten schools in California, and have led to multiple arrests, mainly for making false reports to the police. So this has become somewhat of an internet, social media firestorm. On my lawyer Facebook groups there have been comments from colleagues. Some warn friends that this is Texas, and dressing like a clown could get a person shot. Others talk about not taking any chances, and the County Sheriff in Midland County warns that the “fools” could get shot.
So when a local police officer in Denton, Texas makes a comment about clowns and shooting them, everyone is in an uproar. Really? Look, we all understand that clowns creep out people, and even that Denton has had to deal with clown threats. But investigating an officer for making a post to social media on a matter of public interest? That’s crap, and it violates the officer’s First Amendment right to free speech. You see, while the government can limit the speech of their employees in some limited ways, they are not allowed to silence officers completely.
That’s well established law, by the way. You see, police officers have a right to speak too. You can’t discipline them because they say something that the chief doesn’t like. Hell, if that were the case, I would have been fired dozens of times. So would a bunch of other officers I know. But I’m not going to cover the law again, it hasn’t really changed from the last time I covered this issue.
So Latrice Pettaway suggested that someone “[p]op a cap in the first clown you see” and that if we could “just hit one and the rest of these fools will learn.” OK, does anyone see much of a difference between the statement by Sheriff Gary Painter that someone is going to shoot one of these fools and the statement by Officer Pettaway? The biggest difference is that one statement is made by the agency head, and one by an officer.
Well, hell, we can’t have officers making comments that the public might see! That’s why the Denton Police Department has a policy about social media. Their press release on the issue states that the department policy is that:
Department employees must be mindful of the negative impact of inappropriate or unauthorized postings upon the Denton Police Department and its relationship with the community.
Then the department goes on to say that a violation of policy could lead to disciplinary action. What that means is that if the chief is sufficiently pissed off, he will try to hammer the nail that is Officer Pettaway. You see, most officers don’t know enough about their rights, and of those that do, some don’t see it as important enough to fight the chief over. Because there are consequences when you make a chief back down. The officer will pay a price, maybe not for the speech in question, but for any other violation that they can find.
And Pettaway’s post has brought attention to the department. Some clown has called for her firing for a comment that was obviously a joke. Others are merely talking about the comment, or about clowns, fake threats, etcetera. Disciplining her would be the wrong thing to do. The post wasn’t inappropriate, it was funny, in the dark humor way that cops have. When I saw the first article quoting it, I laughed—until I saw the article mentioning a possible internal affairs investigation.
The post was, in fact, unauthorized. So what? She doesn’t have to get approval from the chief to speak her mind on issues of public interest. And the department doesn’t get to retaliate against her for exercising her first amendment rights.
I know a good number of Denton officers and administrators. Some are very good people, some are slugs in a uniform—but that is the same at any police department. I do not know Pettaway, she was hired well after I left police work and well after I have had meaningful contact with officers and friends in Denton. I don’t even know if Pettaway is a good officer or not, and I haven’t asked or been remotely interested in her job performance because to be frank, it’s not germane to her comments on Facebook.
And while her comments may cause embarrassment to the Denton Police Department, that’s not the relevant issue. The relevant issue is that the public employer does not use its power to silence officers because the employer or its supervisors do not like the content of the employee’s speech.
While I’ve often agreed with the proposition that wearing a badge doesn’t grant an officer any extra rights, I’m adamant that wearing a badge doesn’t take away your rights. Pettaway had a perfect right to say what she said. The Denton Police Department should have said so, and told any clown-loving critics to pound sand.
 There is a shirt for dads that mention if you pop a cap in the first boy to date your daughter, the word will spread; but you don’t see people doing that. It’s because it’s a joke. Stories about me meeting my daughter’s boyfriends while in full uniform and bringing in my shotgun over my arm from the take-home squad car are just vicious, mean-spirited rumors without any evidentiary support.
 OK, I lied. I will mention a SCOTUS case that just came out, Heffernan v. City of Patterson, 136 S.Ct. 1412 (2016), which although on a different type of speech, is still clear that police officers may not be punished for exercising free speech.