Mimesis Law
18 September 2019

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.

greg

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.

16 Comments on this post.

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  • Brian Neathery
    11 March 2016 at 9:57 am - Reply

    Is it likely that a CDL could use the officer’s post against him when he appears as a witness? If so, couldn’t his superiors argue that his social media postings, even off-duty, are affecting his ability to do his job?

    • shg
      11 March 2016 at 10:31 am - Reply

      Interesting point. I would think a CDL could use the Cyr’s words against him, provided they otherwise passed evidentiary muster, to challenge his motive perhaps. But that is attenuated from his position as a cop. Same could be said for something he said at a party that was overheard. If that wasn’t protected, no cop would ever be allowed to say anything anywhere ever.

    • Greg Prickett
      11 March 2016 at 11:16 am - Reply

      I think that a CDL would try to use it.

      I’m not sure how much staying power it would have. From the cop perspective, all he has to say is that he believes that the BLM movement is a terrorist organization which has called for the death of police officers (like the BLM protest in MN) and that he thinks that it is a good thing that one of their leaders is no longer around.

      It’s sort of like the comment when a felon shoots it out with the police and is killed, you’ll hear officers saying that it saved the state the cost of a trial. It really doesn’t, because the officer will almost certainly get sued for wrongful death, but they say it.

      In either case, it does not go towards his truthfulness nor credibility, at least not in my opinion.

  • Jeff Gamso
    11 March 2016 at 1:19 pm - Reply

    “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.”

    That’s just silly. Of course you can, as a citizen, “hate the exercise of a constitutional right.” And then, if you’re a good citizen, maybe you start a drive to amend the Constitution. Or if you’re, say, Mary Ann Franks, you lie about what the Constitution does and does not permit. That’s her exercise of a constitutional right, and I hate her exercise of it, though I’m fond of the right and her exercising it (and my hatred) is a price I’m willing to pay.

    And yeah, I’m being crabby.

    • shg
      11 March 2016 at 2:04 pm - Reply

      Blame the mean ass editor for that one.

  • Nick
    12 March 2016 at 12:21 am - Reply

    For what it’s worth, this isn’t an isolated incident for this officer:

    http://www.whio.com/news/news/fairborn-officer-placed-on-leave-for-facebook-comm/nqNfh/

    Cyr was told by Sgt. Rod Myers said in a May 29 letter: “We have discussed the use of social media, and I have encouraged you to better familiarize yourself with the aforementioned General Order regarding Social Media and model your social media behavior to be consistent with that order.”
    Myers’ letter to Cyr came in response to a call about a post on the Giovanni’s Facebook page to the Fairborn city manager.
    “The thread started by the local restaurant asked, ‘What are your favorite things to do or places in Fairborn?’ ” Myers wrote.
    “You replied with the comment, ‘Leave.’”

    Also:

    http://www.whio.com/ap/ap/ohio/cop-fired-for-inappropriate-comment-about-activist/nqgW7/

    “Police say that while Cyr was off duty when he posted the comment, his actions violated the department’s social media policy.”

    • shg
      12 March 2016 at 7:41 am - Reply

      Aside from this being noted in the linked stories, such that there was no need to raise it in your comment, what is it worth? Is a cop only allowed to exercise a constitutional right once before it’s acceptable to be punished for it? If not, then what purpose is served by your noting it?

    • Greg Prickett
      12 March 2016 at 12:48 pm - Reply

      Nick, it doesn’t matter if Cyr was warned before or not.

      He has a constitutional right to speak, and the police chief does not have a right to tell him not to speak.

      • Robert smith
        17 March 2016 at 3:24 pm - Reply

        He doesn’t have a constitutional right to be a police officer though, does he? He’s always had his right to free speech, just not both.

        • Greg Prickett
          17 March 2016 at 3:37 pm - Reply

          No, he doesn’t have a constitutional right to be a police officer.

          But like I have noted repeatedly, the police department cannot fire him for exercising his free speech rights. This is not a difficult concept.

          I get that y’all don’t like what he said.

          Get over it.

          He has a right to say what he wants to say while off-duty and on a matter of public concern, and the police department is not allowed to retaliate against him based on that speech.

  • Gabriel
    12 March 2016 at 10:05 am - Reply

    If I repeatedly and publicly said I wasn’t interested in doing my job I wouldn’t expect to keep it for very long.

    If his job is “arrest and/or shoot bad people” then his statements aren’t professionally problematic, but if his job is “protect the community,” expressing contempt for that community and rejoicing in the kind of things we expect police officers to prevent is actively interfering with the mission of the organization.

    • Greg Prickett
      12 March 2016 at 12:53 pm - Reply

      You may want to read the cases I linked.

      You’ll be hard pressed to be able to demonstrate that Cyr’s comments, in either case, “actively [interfere] with the mission of the organization.”

      I get that you don’t like what he said. I don’t like it either, I think he’s a dick.

      But no one gets to silence him on matters of public concern. No one. It is a constitutional right, and he gets to exercise those rights.

      • Gabriel
        13 March 2016 at 10:07 am - Reply

        If I was a black person or liberal political activist in the area served by his employer, I’d be wondering if the local police would do anything if my life was at risk. His comments seem to imply that the favorable end, in his opinion, would be my death. I wouldn’t want to try to argue my interpretation to a judge, though.

        Unfortunately I’m a private employee in an at-will employment state. I think this may be why my expectation (and the consequences for me doing something like this) doesn’t match up with the law as it applies to government employees. I’d love protections like that.

        • Greg Prickett
          13 March 2016 at 10:56 am - Reply

          I was a public employee in an at-will state, and unless an officer worked for a civil service department, the officer could be fired at the will of the employer unless there was a legal restriction on terminating the employee. So an employee could not be fired because they were black or hispanic or asian, or because they voted, or went to jury duty, or so on. Free speech on a matter of public concern while off-duty is one of the areas with a restriction.

          I agree that it sends a bad message to the minority community, and I think that I would assign him to a position where he could do the least harm. Dispatch comes to mind. That depends on how many officers the department has, and how well they can deal with that type of assignments.

  • Tom
    12 March 2016 at 1:28 pm - Reply

    Free speech is your constitutional right. There is no constitutional right to be a cop.
    Free speech does not mean speech is free from consequences (mean ass editor keeps reminding us of that one).
    I’m not seeing the problem here. The officer has a right to say what he wants in his own time, which he did. His superiors have a policy that explains what they expect from you regarding personal postings in public media. The officer elected to exercise his constitutional right and thereby violate the policy of his job which resulted in him no longer being employed. Citizen still gets to say what he wants, just he’s no longer an officer while he does so.

    • Greg Prickett
      12 March 2016 at 3:22 pm - Reply

      True, but Pickering is explicit. You do not give up your right to free speech and and government cannot terminate your employment for exercising that right when it is about a matter of public concern.

      The supervisors have a policy that is unconstitutional and that infringes on his rights to free speech. Otherwise anyone could make a “policy” that violates the constitution and there would be no redress.

      If you don’t protect offensive speech, then you may as well not protect any speech, because only offensive speech provokes action like this.