Why ‘free speech’ keeps costing cops their careers
Not understanding the legal arena for speech and how it’s been changed by the internet is resulting in career fatalities and making police work more dangerous
There it was in my email inbox last week: News of another career fatality over an officer’s social media post. Florida officer Matthew Moriarity, 24, had posted a Snapchat selfie with black hair and beard drawn over his face along with graphics of a gun, a syringe, a police car and the statement, “This is how I celebrate Black History Month.”
Moriarity’s attorney described it as a 15-second “lapse of judgment.” Headlines establish such lapses are happening all too frequently. I’ve written about and train on this issue nationwide, but the career injuries and fatalities keep piling up. And not just among young cops.
New Orleans police officer Jason Giroir was a 13-year veteran when he resigned for racially charged internet posts about George Zimmerman’s shooting of Trayvon Martin that went viral. If he hadn’t resigned, how safe would he have been responding to calls in minority neighborhoods? How about officers called to back him up? How effective a defendant would he be in an excessive use of force lawsuit with a minority plaintiff when cross examined about his internet comment, “Act like a thug, die like a thug!”?
The problem is two-fold:
- Confusion about the First Amendment as it applies to government employees;
- A disconnect between how we generate internet speech – privately on our own devices – and where we publish it – on the internet.
Two comments to a news article about Giroir’s resignation on Police1 reveal some of the confusion:
“The Chief shouldn’t have forced his resignation. We don’t give up 1st Amendment rights when we swear to uphold the Constitution.”
“When are cops going to learn we don’t have the same rights as criminals. P.S. I retired and had my rights restored.”
Let’s clarify the law.
The First Amendment, as interpreted by the courts, protects us from the government “abridging” our speech. When cops ask, “Do we have less rights than the criminals?” courts say,
If you become the subject of a criminal investigation, you will have the same rights as a criminal.
When cops ask, “Did I lose my rights when I swore to uphold the Constitution?” courts say,
You lost some of the First Amendment rights of a private citizen when you became a public employee because your interaction with the government (unlike a criminal suspect) is voluntary and mutually beneficially. Government employers aren’t required to pay for insubordination.
In contrast, private employees have no First Amendment protection from employer retaliation for their speech because the government isn’t involved. They may have other protections (as may you) such as anti-discrimination laws, union or job contracts, employee policies and procedures, labor law, etc. – but they have no First Amendment protection.
The U.S. Supreme court set the current standard for government employee speech in Garcetti v. Ceballos (2006). To be protected, such speech must clear three hurdles:
1. It must be about a matter of “public concern” that is, “a subject of general interest and of value and concern to the public at the time of the publication.” “Whether the speech addresses a matter of public concern must be determined by the content, form, and the context of a given statement, as revealed by the whole record.”
2. It must be made as a private citizen, not as part of the employee’s official duties.
If, and only if, the speech meets 1 and 2, the court applies an additional “balancing” test.
3. Do the interests of the employee in the speech outweigh the interests of the employer in the safe, efficient, and effective accomplishment of its mission?
Given the crucial mission of police – public safety – the third hurdle is a tougher one to overcome than it might be with some less critical public employment.
I condemn expressions of bigotry by police officers. It not only makes the job more dangerous for them and other officers, it casts doubt on their ability to protect and serve fairly – which hurts this most noble profession.
But there are plenty of headlines about officers posting simply stupid stuff – stuff they would never consider wearing on a sandwich board around their community. Yet they put it on the internet.
How is this disconnect happening? I can only conclude it’s because officers – like many others – have become so accustomed to Tweeting, Instagramming, Snapchatting, Facebooking, Googling, texting and emailing that they confuse the privacy of the speech generation (fingering their personal phone or computer in off work hours in their home or elsewhere) with its publication to the internet. Perhaps that’s because, unlike the sandwich board, they aren’t physically connected to the internet – it exists “somewhere out there” like a nebulous “cloud.”
In addition to training police officers about what is and isn’t protected speech, policies and training must account for the “disconnect” of posting online. It wasn’t a problem before the internet because venting, joking and letting off steam was confined to locker rooms, the water cooler, family and “real” friends – we were physically with the recipients of our speech, so we tailored it for their ears.
One solution is job policies specific to the internet, particularly social media. Law enforcement has made significant strides in this regard, just google “law enforcement social media policy” to see. Occasionally, departments try to protect officers and the agency with too broad a brush, running afoul of the First Amendment rights officers do still have. The policies themselves should provide officers a “heads up” to think before they click.
Another much needed solution is proactive training of recruits and officers on their internet rights, responsibilities and liabilities with real-world scenarios like I’ve mentioned here and in the side bar. The First Amendment law (and labor law) regarding this ever-changing technology is complicated.
As American journalist Mitch Ratliffe said,
“A computer lets you make more mistakes faster than any invention in human history – with the possible exceptions of hand guns and tequila.”
The profession needs to provide educational policies and proactive training that gets officers to think before they “click.”
Download this Lexipol explainer, “Officer Free Speech: What agencies can and can’t do to restrict free speech,” today to learn key guidelines about officer free speech and First Amendment protection.