Social Media: Legal Challenges and Pitfalls for Law Enforcement Agencies
By Michael T. Pettry, J.D.
Current statistics regarding individuals’ use of social media are staggering.1 According to the International Association of Chiefs of Police’s (IACP) Center for Social Media website, Facebook users share approximately 684,478 pieces of content every minute, and the average user creates 90 pieces of content each month, including links, news stories, blog posts, notes, photo albums, and videos.2 Each day 1 million accounts are added to Twitter, and Instagram records approximately a billion “likes” for material posted on the site.3
Given the thorough integration of social media into peoples’ lives and the ease with which users instantly share their thoughts, opinions, and “status” with family, friends, and strangers, not surprisingly, some users will post items that other people may find inappropriate. This becomes particularly problematic when an employee of a public safety agency posts or is depicted in such material. Because of the significant adverse effects public safety employees’ misuse of social media can have on them as witnesses, on agency operations, and on the department’s relationship with the community it serves, many police agencies have addressed their employees’ use of social media, whether proactively in the form of policy, reactively in the face of an incident, or both. A former chief of police in Smithfield, Virginia, and past president of the IACP stated, “This is something that all police chiefs around the country, if you’re not dealing with it, you better deal with it.”4
Some law enforcement employees, particularly those accustomed to using social media regularly to communicate with “friends” or “followers,” often post material with little or no consideration as to who may have access to it or how it may be shared. Not surprisingly, there have been a number of recent examples of the perils for officers or other department employees who “post first and think later.”
Perhaps, further complicating the issue for police agencies, because of evolving generational standards as to what constitutes private information, younger officers and other agency employees may be more inclined to share information publicly that in the past may have been communicated only to family members or close acquaintances. This may be particularly true for members of the generation known as millenials. “Accustomed to documenting their lives in real time on social-media forums like Facebook and Twitter, they are bringing their embrace of self-disclosure into the office with them.”5 Even employees who attempt to limit the type and amount of information placed into the public domain face challenges presented by social media sites’ privacy policies that seem to be in constant flux and contain language undecipherable to the average user.6
Special Agent Pettry serves as a legal instructor at the FBI Academy.
Pitfalls and the Need for Guidance
In what may be one of the first well-publicized cases of its kind, New York v. Waters highlights how an officer’s off-duty musings can cause serious repercussions for the integrity of a criminal prosecution.7 In Waters the attorneys assigned to represent the defendant, Gary Waters, in a felony gun possession case learned that the arresting officer had a MySpace account.8
During the course of their representation of Waters, the attorneys accessed the officer’s MySpace account because much of the information contained on the page was visible to the general public.9 In perusing the officer’s postings, Waters’ attorneys learned that he just recently had described his mood as “devious.” Jurors also heard how just weeks before the trial the officer’s Facebook page’s status indicated he was watching the movie Training Day to brush up on proper police procedure.10
The defense attorneys delved further into the officer’s online postings and located comments attributable to him concerning video clips of arrests made by other officers.11 Commenting on a video of an officer who punched a handcuffed man, the officer opined that “[i]f he wanted to tune him up some, he should have delayed cuffing him.”12 Another comment suggested that “[i]f you were going to hit a cuffed suspect, at least get your money’s worth….”13 These comments played into the defense’s theory of the case that the officer and his partner used excessive force against their client and then planted a gun on him to justify the force used in effecting the arrest.
When later asked about the comments he had posted on social media sites, the officer noted, “I’m not going to say it was the best of things to do in retrospect.”14 Referring to Waters’ acquittal on the most serious charge of felony possession of a firearm, the officer said, “I feel it’s partially my fault” and added, “It paints a picture of a person who could be overly aggressive. You put that together, it’s reasonable doubt in anybody’s mind.”15
While the Waters case was one of the first where an officer’s use of social media adversely affected a court case, there have been innumerable instances over the last several years where law enforcement officers’ inappropriate uses of social media sites have garnered unwelcome public attention for both the officer and the agency. For example, in 2011 in Albuquerque, New Mexico, the media quickly learned that the officer involved in an on-duty shooting had listed his occupation on his Facebook page as “human waste disposal.”16 When later asked about the characterization of his job in these terms the officer acknowledged that it was “extremely inappropriate and a lapse in judgment on my part.”17 Another recent example that led to not only negative attention for the officer and his department but also the scrutiny of the U.S. Secret Service was an officer’s posting on Facebook of a picture of seven teenagers—some holding guns—along with a bullet-riddled t-shirt bearing the likeness of President Barack Obama. The photograph, entitled “Another trip to the ranch,” was taken after the police officer, his son, and several of the son’s friends had spent the day shooting targets in the desert. The posting caught the attention of the local news media and prompted a visit from Secret Service agents.18
Upon learning of the officer’s posting, the Peoria, Arizona, Police Department initiated an internal investigation.19 Finding that the officer’s actions violated the portion of the department’s code of conduct that states that “all employees shall conduct themselves in a manner that shall never bring discredit or embarrassment to the city of Peoria or the Peoria Police Department,” the department demoted the officer and imposed an 80-hour suspension.20 The officer, a veteran with many years of distinguished service to the department, was quoted in a news article as saying, “I was an idiot for putting it (the photo) on Facebook, but to have all the pluses in my career forgotten over this one incident, which harmed no one, I think, is taking things too far.”21
As the above examples illustrate, officers’ postings on social media sites can have a negative impact on not only them personally but also their agencies. In addition to compromising their ability to serve as witnesses in criminal proceedings, public safety employees’ inappropriate or careless postings on social media sites can impact an agency negatively in a variety of ways.22 For example, an employee’s statements about coworkers and departmental leadership can create dissension in the workplace, involve sexually explicit or inappropriate communication, jeopardize ongoing investigations by revealing sensitive information, or damage a law enforcement agency’s relationship with the diverse community it serves.23
First Amendment Issues for Public Employees
Because of the ever-increasing frequency of government employees’ use of social media both on and off duty, many law enforcement agencies recently have begun to adopt policies and guidelines that specifically address this issue. These policies set forth the expectations and rules governing employees’ use of social media, and violation of them can subject the employee to departmental discipline. Even in the absence of a specific policy regulating the use of social media, employees’ use of social media in a manner detrimental to their agency can subject them to discipline for violating other departmental policies and
Because public employees’ postings, comments, and likes on social media sites likely will be characterized as speech, the protections afforded all citizens under the First Amendment to the Constitution likely will be implicated.25 “The U.S. Supreme Court long has recognized that individuals do not relinquish their constitutional rights by entering into public service.”26 Indeed, while all public employees retain the rights and protections afforded under the First and other Amendments to the Constitution, the courts have recognized that the government has considerably more ability as an employer to regulate its employees’ speech than it would simply as a sovereign.27 As the cases cited herein illustrate, existing case law provides law enforcement administrators with ample guidance as to the limits they can place on employees’ use of social media and the discipline that properly can be imposed in the event an employee’s speech violates these standards.
For courts considering whether a government employer has exceeded its ability to restrict employees’ speech, the threshold issue to be addressed is whether employees made the statements or created the speech in their official capacity or as private citizens. While the legal standards to be applied in cases arising from an employee’s on-duty or official-capacity speech are well-defined, police administrators sometimes are unsure of their ability to regulate speech made by their off-duty employees. Although a detailed analysis of the regulation of public employees’ speech is beyond the scope of this article, an overview of the legal landscape governing public employees’ First Amendment protections will be provided.
In a series of cases beginning in the late 1960s, the Supreme Court began defining the contours of First Amendment protections afforded public employees.28 The legal standard used by courts to determine whether government employers had exceeded their ability to sanction employees for their speech required them to balance the employee’s interests as private citizens commenting on matters of public concern against the government employer’s interest in conducting its operations efficiently.29 Under this standard the courts were required to begin their analysis by determining whether the speech in question, as a matter of law, touched on a matter of public concern.
According to the Supreme Court, speech on a matter of public concern is speech that is “a subject of legitimate news interest; that is, a subject of general interest of value and concern to the public at the time of publication.”30 If the speech in question does not touch on a matter of public concern, the courts will defer to the government employer’s decision to discipline employees for their speech.31 However, if it is determined that the speech does, in fact, relate to a matter of public concern, the court is required to apply a balancing test. In conducting its analysis of whether the employee’s speech is that which warrants constitutional protection, the court will assess its value against the negative effect it has on the government entity’s interest in ensuring efficient operations in the workplace.32
The Supreme Court first applied this analysis in its decision in Pickering v. Board of Education, when it considered whether a school board had improperly terminated a school teacher who had written a letter to a local newspaper critical of the school board’s approach to raising revenue for the district.33 In upholding the terminated employee’s claim, the Court found that his speech did not negatively impact the school district’s interests in maintaining operational efficiency because he did not have regular contact with the school board members criticized in the letter.34 The result might have been different had the employee’s actions interfered with the employer’s interest in maintaining discipline and a harmonious relationship among coworkers.35
Subsequent to its decision in Pickering, the Court decided Connick v. Myers, in which it considered the First Amendment claim of an assistant district attorney (ADA) who was fired after she prepared and circulated a questionnaire among her coworkers concerning office policies, morale, and their feelings regarding supervisors in the office.36 In finding that the questionnaire circulated by the former ADA predominantly concerned a private concern versus one of a public nature, the Court rejected the claim.
Although one of the items contained in the questionnaire may have been considered a matter falling within the public concern as it asked whether employees had been pressured into working on political campaigns, the Court found that the employer’s concerns about the negative effects associated with the circulation of the questionnaire outweighed the First Amendment value of that portion of the questionnaire.37 Thus, the holding in Connick affirmed the Court’s interest in granting government employers sufficient latitude and discretion to manage their internal operations. As the court noted in its opinion:
When close working relationships are essential to fulfilling public responsibilities, a wide degree of deference to the employer’s judgment is appropriate. Furthermore, we do not see the necessity for an employer to allow events to unfold to the extent that the disruption of the office and the destruction of working relationships is manifest before taking action.38
Statements Made by Employees in Their Official Capacity
In 2006 the Supreme Court decided Garcetti v. Ceballos, which served to further clarify a government employer’s ability to restrict speech made by its employees while serving in their official capacity. In Garcetti a deputy district attorney brought a First Amendment claim against his employer, the Los Angeles County District Attorney’s Office, stating that it had retaliated against him for writing a memorandum expressing concerns about an affidavit in a criminal case.39 In rejecting the deputy DA’s claim, the Court held that:
[when] public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.40
The Court further explained its reasoning by stating:
Restricting speech that owes its existence to a public employee’s professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen. It simply reflects the exercise of employer control over what the employer itself has commissioned or created.41
Regulation of Public Employees’ Off-Duty Speech
Deciding the proper legal analysis to apply when dealing with statements made by off-duty law enforcement officers can be problematic given that officers often are considered to be always on duty. And, indeed, few would argue that employees of public safety agencies are and should be held to a higher standard of conduct both on and off duty.42 In recognition of the unique position police officers hold in society, the IACP’s Code of Ethics states that an officer will “keep my private life unsullied as an example to all and will behave in a manner that does not bring discredit to me or my agency.”43 Police departments’ codes of conduct that include language, such as that contained in the Code of Ethics, often impose constraints on employees’ behavior as “part of their job is to safeguard the public’s opinion of them.”44
The Court’s holding in Garcetti reaffirmed the principle that “when a citizen enters government service, the citizen, by necessity, must accept certain limitations on his or her freedom.”45 Thus, in the context of the regulation of employee use of social media, clearly, most statements made by public employees in their official capacity will have few of the First Amendment protections enjoyed by private citizens. However, because many the missteps made by officers in their use of social media occur while off duty, the government employer will need to determine whether the employee was speaking as a private citizen and whether the speech concerned a matter of public concern.
In its decision in City of San Diego v. Roe, the Supreme Court used its existing “public concern” test to determine whether an officer’s off-duty behavior warranted protection under the First Amendment.46 Although not directly addressing the issue of an officer’s inappropriate use of social media, the Roe decision, nonetheless, provides a government employer with considerable guidance as to how it can discipline employees for off-duty speech that it views as harmful to its mission.
Roe involved the case of a San Diego, California, police officer who was terminated after it was discovered that he had offered for sale on the adults-only section of eBay a video of himself stripping off a police uniform and masturbating.47 Although the uniform worn by the officer in the video was not the specific uniform worn by members of the San Diego police force, it was clearly identifiable as a police uniform.48 His eBay user name was "Code3stud@aol.com," a reference to an emergency police radio call.49
A police department investigation into the officer’s activities on the eBay site concluded that he had violated several departmental policies, including conduct unbecoming an officer, engaging in outside employment, and immoral conduct.50 When confronted with the results of the internal investigation, the officer admitted to selling the videos and police paraphernalia.51 The department ordered the officer to “cease displaying, manufacturing, distributing or selling any sexually explicit materials or engaging in any similar behaviors, via the internet, U.S. mail, commercial vendors or distributors, or any other medium available to the public.”52 Although the officer complied with several of the department’s requirements, he failed to remove his seller’s profile from the site. The department terminated the officer when it learned of his failure to follow its previous directive.53
Following his dismissal the officer brought suit in federal court claiming that the department’s termination of his employment violated his First Amendment right to free speech.54 In granting the city’s motion to dismiss, the district court agreed that Roe’s conduct in selling the official police uniforms and the production and sale of the sexually explicit material was not speech that related to a matter of “public concern” under the test set forth in Connick.55 In its reversal of the district court’s decision to grant the city’s motion to dismiss the officer’s suit, the Ninth Circuit Court of Appeals held the officer’s “conduct fell within the protected category of citizen commentary on matters of public concern” due to the fact that the public expression did not relate to an internal workplace grievance, occurred while he was off duty and away from the workplace, and did not relate to his employment.56
The city appealed the decision to the Supreme Court, which began its analysis of the case by reaffirming the principle that “[a] government employee does not relinquish all First Amendment rights otherwise enjoyed by citizens just by reason of his or her employment.”57 According to the Court, “when government employees speak or write on their own time on topics unrelated to their employment, the speech can have First Amendment protection, absent some governmental justification ‘far stronger than mere speculation’ in regulating it.”58
In determining whether the officer’s off-duty expressive conduct warranted protection under the First Amendment, the Court relied upon the analytical framework it had adopted in Connick, which requires an examination of the “content, form, and context of a given statement, as revealed by the whole record,” to determine whether the employee’s speech involves a matter of public concern.59 Applying that standard to the facts of Roe, the Court concluded that the officer’s “expression does not qualify as a matter of public concern under any view of the public concern test.”60 In its opinion reversing the Ninth Circuit, the Court considered whether the San Diego Police Department had “legitimate and substantial interests of its own” that were compromised by the officer’s speech.61 As the Court noted:
Roe took deliberate steps to link his videos and other wares to his police work, all in a way injurious to his employer. The use of the uniform, the law enforcement reference in the Web site, the listing of the speaker as ‘in the field of law enforcement,’ and the debased parody of an officer performing indecent acts while in the course of official duties brought the mission of the employer and the professionalism of its officers into serious disrepute.62
Because the officer’s conduct clearly implicated his position as a police officer, the Court recognized that the government as an employer had substantial expressive interests of its own that were threatened by his speech, which, thereby, justified its decision to terminate his employment.
Another case that offers guidance to law enforcement agencies confronted with issues involving employees’ off-duty speech is Dible v. City of Chandler.63 This case involved an officer terminated from a local police department after it was learned he had been operating a website that featured sexually explicit material involving his wife. Approximately a year after the officer and his wife established the website, rumors about its existence began to circulate through the police department.64 Thereafter, the officer was ordered to cease all activity involving the website and was placed on administrative leave.65 Negative publicity for the police department ensued as the local media reported that the website had been operated by a police officer. An internal investigation conducted by the department found that the matter had adversely impacted working conditions at the department and that police officer morale “really hit bottom.”66
Following his termination for violating the department’s regulation against bringing discredit to the City service and for his less-than-candid answers during the internal investigation, the officer appealed to the City’s merit board. Evidence was adduced at the hearing that showed officers had been subjected to ridicule because of the website and that one officer was referred to as a “porn whore” by an individual she was trying to arrest.67 Other negative impacts to the department, such as its difficulty recruiting female police officers, also were considered by the merit board, which affirmed the department’s decision to terminate Dible.
The officer and his wife then sued the City of Chandler in federal district court, claiming the City had violated the officer’s First Amendment right to freedom of speech when it terminated him for his involvement in setting up and operating the website. The district court granted the City’s motion to dismiss the claim, and the officer and his wife appealed to the Ninth Circuit Court of Appeals.
In its decision upholding the City’s ability to terminate a police officer for engaging in off-duty expression that could harm the department, the Court questioned whether police officers ever can disassociate themselves from their powerful public position sufficiently to make their speech (and other activities) entirely unrelated to that position in the eyes of their supervisors and the public. Whether overt or temporarily hidden, Ronald Dible’s activity had the same practical effect—“it brought the mission of the employer and the professionalism of its officers into serious disrepute.”68
The U.S. District Court for the District of Oregon’s recent decision in Shepherd v. McGee directly addresses the First Amendment issues raised by a government employer’s imposition of discipline due to an employee’s postings to a social media site.69 In that case the plaintiff, a former employee of the Oregon Department of Human Services (DHS), brought a First Amendment claim alleging she had been wrongfully discharged on account of postings she had made to her personal Facebook page.
At the time of her termination from DHS, the employee served as a child protective services (CPS) caseworker. In that capacity she was responsible for investigating reports of child abuse and neglect and preparing the cases for review and disposition by the juvenile court. Although less than 10 percent of the cases she handled actually were heard by the court, every case could potentially be heard by the court and, therefore, needed to be prepared as if it would.70 In investigating and preparing the cases for court, the employee worked closely with both the local district attorney’s office and the Oregon Department of Justice.
While employed at the DHS the employee maintained a personal Facebook page on which she identified herself as a “Child Protective Services Case Worker at Department of Human Services.”71 The Facebook page contained no disclaimers that the information contained therein was her own personal opinion and not that of her employer. Moreover, none of her posts contained any such clarifying language. The employee’s Facebook page’s privacy settings made her postings and other content visible to any of her Facebook friends, which numbered in the hundreds, and included among them a local judge, deputy district attorneys, defense attorneys, and more than a dozen law enforcement officers.72
While employed at DHS the employee made a number of inflammatory and controversial posts on her personal Facebook page in which, among other things, she criticized her clients’ purchases, advocated forced sterilization of certain clients, and suggested that child abusers also should be physically abused. These posts were seen by some of the employee’s Facebook friends, including a local defense attorney and judge.
A local DHS manager brought the posts to the attention of the agency’s human resources manager, who found that the posts reflected the very sort of biases that the employee should not exhibit due to her position as a caseworker. When questioned about the postings, the employee acknowledged holding some of the beliefs reflected in the posts and admitted she would have a difficult time testifying and explaining her ability to be objective.
DHS officials consulted with government attorneys who handled the agency’s cases about the potential impact of the material on the employee’s ability to serve as a witness. One of the attorneys, a local prosecutor, opined that the material likely would be considered discoverable and because of its content would need to be disclosed in every dependency hearing involving physical abuse in which the employee was called as a witness. Moreover, the postings would subject the employee to questioning about her views each time she was called to testify in such a case and likely could have an adverse impact on both pending and future cases. The other attorney, an assistant attorney general, noted that as a DHS social services worker, the employee often was singularly responsible for obtaining and recording statements from subjects and witnesses, as well as drafting reports of her observations in a particular case.
The employee’s job was compared to that of a police officer, with all of the attendant concerns about reliability, credibility, and issues of bias while serving as a witness. The assistant attorney general concluded that “he would never be able to call her to the stand due to her credibility being terminally and irrevocably compromised.”73 The attorney added that in every case the employee “was involved with and in which she were called to the witness stand, the defense attorney would raise her Facebook postings in order to impeach her and her credibility as a DHS employee.”74 The same attorney further noted that the employee’s posts would “reflect adversely and broadly on DHS in the relevant community” and that it was possible that the postings would render her incapable of performing any function for DHS.75 The above opinions, coupled with the results of DHS’ internal investigation into the employee’s conduct, resulted in the agency’s decision to terminate her employment.
During the course of the litigation following her dismissal from DHS, the employee acknowledged that her job was “to be a neutral appraiser of the settings in which the children live.”76 In her work evaluating dependency cases the employee was not to “consider the employment status, religious beliefs, or political beliefs of the adults in the home, or concern herself with how they chose to spend money or furnish their home.”77 Many of the parents being assessed by the employee received government assistance, such as Temporary Assistance to Needy Families (TANF), food stamps, or the Oregon Health Plan.
Following her termination from the DHS, the employee brought a First Amendment retaliation claim under 42 U.S.C. § 1983. In reviewing the matter pursuant to DHS’ motion for summary judgment, the district court used a five-part analysis based on the balancing test set forth in Pickering.78 In applying the balancing test to the facts of this case, the court assessed whether the government could demonstrate that the employee’s speech “impairs discipline by superiors or harmony among coworkers, has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, or impedes the performance of the speaker’s duties or interferes with the regular operation of the enterprise.”79 The court further noted that the government’s interest in avoiding disruption caused by an employee’s objectionable speech is greater when the employee serves in a “public contact role.”80
In support of its position that the nature and contents of the employee’s Facebook posts justified her termination, DHS argued that it was indisputable that her actions “compromised her ability to effectively perform her job and the operations of DHS and thus, the government’s interest in maintaining efficient operations outweighs Plaintiff’s free speech rights.”81 In rejecting the employee’s argument that she should not be subject to discipline as her speech had not caused an actual disruption to the operations of the DHS, the court noted that her speech already had disrupted the working relationships she had with the government attorneys responsible for handling her cases in court. Moreover, the court noted that the government was not required to actually allow its operations to be adversely impacted before taking disciplinary action against an employee.
Considerations in Cybervetting
As individuals’ use of social media has grown exponentially, in recent years a number of law enforcement agencies have integrated a cybervetting component into the comprehensive background investigations they conduct on applicants and on-board employees. According to the December 2010 publication Developing a Cybervetting Strategy for Law Enforcement, “[c]ybervetting is an assessment of a person’s suitability to hold a position using information found on the Internet to help make that determination.”82 Because of the substantial amount of information concerning prospective and current employees that can be located via the Internet, cybervetting can serve as a logical means to identify information about applicants that may impair their ability to serve as a public safety professional.
However, because of the risk that the cybervetting process may yield information that is either inaccurate or relates to legally protected information about the applicant, it is suggested that law enforcement agencies adopt procedures and policies that ensure they are only considering accurate and appropriate information in making employment decisions.83 The aforementioned publication serves as an excellent introduction to this topic and offers law enforcement employers considerable guidance as to how they can incorporate cybervetting into their employment suitability review in a legally defensible manner.
Employers also should note that in what may very well signal a legislative trend in this area, a number of states recently have passed laws or are considering legislation that would restrict employers’ ability to require job candidates or on-board employees to surrender their login credentials or passwords for social media sites.84 Because these statutes do not exempt public safety agencies, government employers must ensure they are aware of the scope of the applicable statutes prior to attempting to gain access to candidates’ or employees’ social media accounts. Of course, information publicly available to all Internet users would remain accessible to employers and could be utilized as part of a cybervetting program subject to both federal law and other applicable state statutes.
As the forgoing cases indicate, courts have provided government employers with considerable guidance as to how they can discipline employees for speech that runs afoul of departmental codes of conduct or is otherwise injurious to the employer’s mission. While an objectionable text, email, or posting can be sent quickly, the fallout can be both lasting and significant for the department and the employee.
Within the last several years, many public safety agencies have proactively sought to avoid the pitfalls associated with their employees’ use of social media through the adoption of clearly and concisely drafted policies.85 A well-drafted policy, coupled with efforts to ensure employees are educated about the potential pitfalls of inappropriate use of social media, will serve to protect the agency’s operational interests while recognizing the ways government employees can and do use social media responsibly and appropriately.
Agencies that have yet to adopt a social media policy may wish to review IACP’s “Model Policy,” available on its social media website.86 IACP has recognized the myriad issues that can arise from public safety employees’ use of social media, and its Center for Social Media can serve as an outstanding resource for law enforcement agencies interested in learning more about those issues.
Law enforcement officers of other than federal jurisdiction who are interested in this article should consult their legal advisors. Some police procedures ruled permissible under federal constitutional law are of questionable legality under state law or are not permitted at all.