Do you know the limits of what you can say about the brass or the department on your Facebook page? iStock
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Editor’s Note: This article is not intended nor should it be taken or relied on as legal advice. It's for discussion purposes only.
For as long as there have been employer-employee relations, there’s been griping about the same. It’s a revered tradition to stand around the water cooler and complain about the boss, work conditions, wages, promotions, unfair discipline, etc.
In America, this tradition enjoys certain legal protections. But there are limits to bad-mouthing the boss or the department. Some comments can get you sued, disciplined, or fired. This push-pull has implications for officers, the brass and departments as a whole. Throw in the new and evolving technologies of anonymous internet postings and social media and we’ve got a lot of interesting questions.
- Do you, as an officer, know what kind of grousing can get you sued, disciplined or fired?
- Do you know how your rights and liabilities apply to your personal social media page during non-working hours?
- Do you know how your rights and liabilities apply to anonymous internet postings?
- Does your department have policies governing officers’ comments about supervisors and the department posted anonymously or on their personal social media pages?
- Would the policies withstand a legal challenge if relied on to discipline an officer for griping about a supervisor or the department anonymously on the internet or on her personal social media page?
In “a shot heard round the [employment law] world,” the National Labor Relations Board has agreed to address whether and how a worker bad-mouthing her supervisor on her personal Facebook page might be grounds for dismissal.
What? You’ve had a crummy shift, week, month or year at work and you go home and vent online and you can be fired and possibly sued? What’s the Internet coming to? Lots of litigation and legal precedence, for one thing.
Basics in Defamation Law
Ideally, etiquette and civility would govern all our discourse and disagreements. If we lived in such a world, cops would be out of work.
Enter the law. In this case, the law of defamation.
Defamation law has been set out in this country for centuries. Generally--different states and jurisdictions may have varying laws--defamation is:
- Any false statement of fact
- That may damage the image or reputation of an individual, product or entity (like your department)
- That is published (publication that is oral is slander; written or printed publication is libel)
- “With fault”:
-- If the subject of the statement is a private figure, “with fault” is established if the person making the statement knew, or in the exercise of reasonable care should have known, the statement was false – that is, if the person was “negligent” regarding the statement’s falsity.
--If the subject is a public figure or official or an issue of public concern, a higher standard of “actual malice” or “reckless disregard” must be shown to establish fault.
Because defamation requires a false statement of fact, truth is always a defense. Keep in mind: Truth can be difficult (and in the case of a lawsuit—expensive) to prove.
The remedy for defamation in the U.S. is generally civil liability for the damages inflicted. There’s no federal criminal defamation. Sixteen states have some criminal defamation legislation and recently there have been some criminal defamation cases arising from the internet in Wisconsin, Colorado and Oklahoma.
Public vs. Private Figure
Case law from different jurisdictions may vary somewhat regarding who is a public figure or official. There are also sub-categories such as:
- Always public figures or officials: Those who occupy positions of such power and influence they are deemed public figures for all purposes.
- Involuntary public figures or officials: They may become public figures through no purposeful action of their own, including those who have become especially prominent in the affairs of society.
- Public figures on specific issues: Those who have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved.
For our purposes, the chief is probably always a public official since she is in a position to make public policy. Although we know officers are subject to much greater public scrutiny for their official conduct than many other citizens, for purposes of defamation law, a non-managerial officer is probably not a public official of figure unless she makes herself one on a specific issue.
Fact vs. Opinion
Statements of opinion, as distinct from statements of fact, are protected by the First Amendment. Whether you, the speaker or writer, characterize the statement as opinion is not the test.
In Milkovich v. Lorain Journal Co., 497 U.S. 1 at 17, 21 (1990), the Supreme Court articulated some standards for determining whether a statement would be held to be an opinion or fact for defamation purposes:
- Is the language loose, figurative, or hyperbolic, which would counter the notion the speaker was seriously maintaining the truth of the underlying facts?
- Does the general tenor of the statement undercut the impression that the speaker was seriously maintaining the truth of the underlying fact?
- Is the statement sufficiently factual to be proven true or false?
- Does the statement address a matter of public concern?
Milkovich only sets a constitutional floor below which state law cannot go. Nothing prevents states from providing more protection to opinions than the First Amendment requires.
Some jurisdictions have eliminated the distinction between fact and opinion, and instead hold that any statement that suggests a factual basis can support a cause of action for defamation.
Defamation on the Internet
The Internet has added some new twists to defamation law. That’s mainly because the Wide World Web gives the average, anonymous Jane and John Doe the power to instantly send their opinions globally without anyone checking the facts first. After that first “click,” the item can linger on the internet indefinitely, even if the “facts” or opinion are wrong. The shelf-life of an internet statement is often longer than many print publications.
The wrinkles for anonymous-based forums on the internet include:
- How does the allegedly defamed plaintiff discover the speaker’s identity?
- How will courts decide whether to order anonymous identities revealed?
-- On one hand, the Supreme Court has held that anonymous speech is vital to democratic discourse. Allowing dissenters to shield their identities frees minorities to express critical views free from the tyranny of the majority. McIntyre vs. Ohio Elections Commission, 514 U.S. 334 (1995).
-- On the other hand, the First Amendment does not protect defamatory statements and to prove defamation, victims need to establish the speaker acted with negligence, reckless disregard or actual malice. That’s nearly impossible without discovering the speaker’s identity.
We have lots more to look at and ponder. In future articles, we’ll discuss:
- The National Labor Relations Board [NLRB] case, and others, that address what bad-mouthing of a boss or organization on the internet can get you suspended or fired, even if it doesn’t constitute defamation. [Note: Public employees aren’t covered by the NLRB but its opinions are often looked to for guidance.]
- What kinds of criticisms or complaints are protected speech under the First Amendment or employment laws protecting employees’ rights to complain about management, pay, benefits and workplace conditions?
- What kind of internet and social media policies should police departments be adopting—ethically and legally?
Origin of “Shot Heard ‘Round the World”