Police Officers have A Right to Speak Too
Mar. 11, 2016 (Mimesis Law) — Yesterday, Tara Singh wrote about the firing of Fairborn, Ohio Police Officer Lee Cyr for his comments about the suicide of a Black Lives Matter (BLM) activist, MarShawn McCarrel.
McCarrel lost his internal battle with his “demons” on February 2, 2016 and killed himself on the steps of the Ohio statehouse. He was only 23.
Cyr, off-duty and on his own time, posted on Facebook, “Love a happy ending.”
With that statement, Cyr validates my position that, as a rule of thumb, police officers who shave their head are dicks.
As Tara noted, Cyr got himself fired for violating the police department’s social media policy, having been previously warned about social media posts during the previous year.
That’s all well and good, because a police department can’t allow its officers to speak freely as it causes headaches for the department’s administrators. Hell, my chief tried to tell me that I had to ask him for permission to contact state legislators on my own time about issues that concerned both the police department and me. He backed down after I told him I didn’t need anyone’s permission to contact my representatives to inform them of my views on pending legislation, on matters of public concern. He backed down (probably not because of me, but because the police union was involved), but he didn’t like it. At all.
Police chiefs do not like officers who speak their mind, but that’s too bad because an officer does not lose his constitutional right to free speech just because he pins on a badge.
It is true that some matters are not free speech. In Garcetti v. Ceballos, when a deputy district attorney wrote a memo in connection with his duties, and was disciplined for it, it was not protected free speech. The Supreme Court held that when a public employee makes a statement due to his job and relating to his job, his speech has no First Amendment protection.
That’s not the case here. Cyr was off-duty and the statement had nothing to do with his job.
There are times where off-duty speech can get one fired too, such as the San Diego Police officer who created a pornographic video, using a police uniform, identifying himself as a real law enforcement officer, and sold those videos online. In City of San Diego v. Roe, the Supreme Court held that the officer’s videos were not about “a matter of public concern” and the city could restrict the officer’s speech to protect the city’s interests.
It’s all about a balancing test, whether the speech touches on a matter of public concern.
Clearly, the BLM movement is a matter of public concern. It has been covered by all sorts of media, the subject of spirited debate in the public between those who support BLM and those who do not. A public suicide on the statehouse steps is obviously news, even without a publicly known activist being the suicide victim.
Cyr obviously doesn’t like the BLM movement. That’s not news. A bunch of police officers don’t like the BLM movement. So when McCarrel killed himself, a public figure, in a very public place, it is a matter of public concern. And Cyr commented on it.
That’s his right as a United States citizen.
You don’t lose that right by being a police officer.
If the public employee, like a police officer, is speaking on a matter of pubic concern, he has the right to speak freely. In Pickering v. Board of Education, the Supreme Court said:
[I]n a case such as the present one, in which the fact of employment is only tangentially and insubstantially involved in the subject matter of the public communication made by a [public employee], we conclude that it is necessary to regard the [public employee] as the member of the general public he seeks to be.
Police officers all swear an oath to protect and defend the Constitution. Every one of them. That includes chiefs and administrators. Yet those same administrators are quick to fire officers who piss them off, who don’t fit in with the political views of the police brass and government administrators.
As citizens, you want to insist that that these officials uphold the rights of their officers to exercise free speech. You can hate what a cop has to say, just as a cop may hate what you have to say, but you can’t hate the exercise of a constitutional right.
As noted in Pickering:
[The] exercise of his right to speak on issues of public importance may not furnish the basis for his dismissal from public employment.
If the administrators won’t support the rights of their fellow police officers to speak publicly on matters of public concern, how well do you think that they will protect your rights? They have tried to limit independent contractors free speech on matters of public concern by cancelling contracts when they didn’t like the contractors’ speech on fiscal mismanagement (Board of County Commissioners v. Umbehr). Do you really think that they won’t try to restrict your speech?
So a jerk like Cyr has to be able to speak on these matters, even when his speech is offensive, so that all of us are able to exercise our right free speech.
It’s not pleasant, and you may very well be offended by the speech you hear.
There is no constitutional right to not be offended.
There is a constitutional right to speak.