You may be surprised to learn what speech is not protected because you're a police officer. Photo iStock
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Last month in the article Facebook Comments Can Get LEOs Fired we barely cracked Pandora’s box of how an officer’s postings on social media might get them in trouble -- focusing on the basics of defamation law.
This month, we’ll look at how officers -- by virtue of being public employees -- have restricted free speech rights. What? You put it all on the line protecting and serving, and you have fewer first amendment rights than the criminals? Yep.
If it makes you feel any better, private employees have no first amendment protections to job actions taken against them for expressing themselves. How can that be?
In lawsuits brought by police and corrections officers claiming retaliatory job action for protected speech, and in online comments by officers, there seems to be miscomprehension about what’s protected speech and what’s not. Let’s see if we can’t clear up some of the confusion.
Free Speech Isn’t Totally Free
When it comes to free speech, the First Amendment says, “Congress shall make no law … abridging the freedom of speech[.]”
We know exceptions have been carved out even to this plain language:
- You can’t falsely yell “fire” in a crowded theater.
- You can’t make terroristic threats, harassing phone calls or cyber bully.
- You can’t create a hostile work environment with trash talk.
Free Speech for Private Employees
Private employees receive no workplace First Amendment protections because there’s no government action involved in their employer sanctions. That doesn’t mean private employees have no protection for their expressions.
The National Labor Relations Act (NLRA) forbids private employers from interfering with restraining or retaliating against employees for engaging in protected concerted activities, which may include complaining or grousing about work conditions, supervisors and the organization. Note: The NLRA does not cover public employees.
Anti-discrimination laws may protect religious and ethnic expressions. An employer can’t punish a private employee for his religion. There may also be whistleblower protections and union or other job contract protections for private employees.
But when it comes to the First Amendment protecting private employee speech it doesn’t. Private employees must look to statutes, employment contracts, policies and procedures (or the lack thereof), union regulations or some other protection.
Free Speech for Public Employees
As public employees, law enforcement officers have some workplace First Amendment protection for their expressions, but it’s limited.
In an FBI Law Enforcement Bulletin titled Speech and the Public Employee, Lisa Baker provides a thorough discussion of U.S. Supreme Court and other with all the legal citations you could hope for -- and more. This article provides a nutshell version [minus complete citations].
For an officer’s speech (this includes oral and written, verbal, photographic, videographic, musical, performance art, etc.) to be protected by the First Amendment:
1. It must touch on a matter of public concern, and;
2. It must be made as a citizen -- not as part of the officer’s official duties, and;
3. Even if it addresses a matter of public concern, the officer’s interest in the speech must outweigh the agency’s substantial interest in promoting and maintaining efficient operations.
If the officer does not make the speech as a citizen, it is not protected -- even if it is a matter of public concern. Similarly, if it isn’t about a matter of public concern, it is not protected, even if it is made as a private citizen. Only if the first and second conditions are met, does the court even consider the balancing in the third.
These three requirements apply to internet expressions of speech such as Facebook, MySpace, YouTube, LinkedIn, Twitter, Digg, Flickr, etc.
The Public Concern Requirement
The public concern requirement is determined by looking at the content, form and context of the speech. In Connick v. Myers, an assistant DA, unhappy about a transfer, prepared and circulated a questionnaire within her office soliciting co-workers’ opinions on:
- Office morale;
- Work assignments;
- The need for a grievance committee;
- Confidence in management; and
- Whether employees felt pressured to work on political campaigns.
The Supreme Court concluded that only the last issue possibly touched on a matter of public concern. The remaining topics were internal workplace matters and the DA was justified in firing Myers for insubordination. It’s interesting to note that this speech would most likely have been protected concerted activities under the NLRA, had Myers been a private employee.
The Supreme Court elaborated on the public concern requirement a case involving off duty “speech” by a police officer. In City of San Diego v. Roe, the Court stated,
“[P]ublic concern is something that is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public at the time of the publication. …[T]ypically matters concerning government policies that are of interest to the public at large.”
- Facebook Comments Can Get LEOs Fired
- 10 Things Your Agency Must Know About Social Media
- Shouting Fire in a Crowded theater
- Terrorist Threat Not Considered Free Speech
- Court: Cyberbullying Threats Are Not Protected Speech
- Why Harassment Is Not Protected Speech
- What Are Protected Concerted Activities?
- Speech and the Public Employee