In general, police officers are afforded the same constitutional protections as the public. That is, officers are entitled to be free from unlawful discrimination in their employment and are afforded protection under the First Amendment’s guarantee of free speech. However, in a limited set of circumstances, the officer’s employer may quash the officer’s speech in the interest of running an effective workplace.
It’s well-established that a public employee (i.e., a police officer) does not waive all of their First Amendment rights by accepting public employment.1 However, it has also long been recognized that the governmental employer (i.e., a police administration) may impose certain restraints governing the speech of its employees, which if applied to the public, would be unconstitutional.2
Public Concern Test
Whether or not, and to what extent, a police administration can regulate an employee’s speech depends on whether that speech addresses a “matter of public concern.”3 To be sure, not every word uttered or act displayed by a public employee is protected by the First Amendment. To be construed as a matter of public concern (the first step toward ensuring First Amendment protection), the employee’s speech must be “something that is the subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public at the time of [its verbal or written] publication.”4 Generally, if an officer’s speech is deemed to be a matter of public concern, they’re given significant leeway to engage in that speech or conduct.
Officers aren’t in the permanent clear though. Even if the speech or conduct is a matter of public concern, a police administration is legally permitted to discipline police officers for the activity if the conduct interferes with the efficient operation of the police administration.
But what if an officer’s speech has nothing to do with informing the general public on a matter of public concern? What if an officer’s conduct has nothing to do with their employment? Are officers afforded the same First Amendment protections for activities they engage in on their own time as private citizens? Can they be disciplined for off-duty, nonemployment-related speech or conduct?
When Discipline Is Warranted
What officers do on their own time can result in discipline by police administrators. This is most true when the conduct in question calls the department into disrepute or gives an appearance of impropriety. Why? Simply put, when officers don the uniforms representing their government employers, they take on a position of authority and trust. The moment any officer engages in conduct that erodes that trust, the police administration must take action to restore the community members’ level of trust.
The following two cases illustrate situations when activity conducted by police officers on their own time resulted in discipline, up to and including termination.
City of San Diego v. Roe
In a case decided in the U.S. Supreme Court in 2004, City of San Diego v. Roe,5 an officer of the San Diego Police Department (SDPD) videotaped himself stripping off an unofficial police uniform and masturbating. He sold the video on the adults-only section of eBay using an eBay user profile that indicated he was employed in law enforcement. When the conduct came to the attention of the SDPD, it commenced an investigation. The department ordered the officer to cease his extra-curricular activities, but he didn’t fully comply. Soon after, the police administration terminated the officer.
The Court found that although the officer’s conduct did not amount to a matter of public concern, it was connected to his employment as a San Diego police officer. The Court also found the officer’s conduct had a negative impact on the operations of the SDPD. Specifically, the Court stated that although the officer’s activities “took place outside the workplace and purported to be about subjects not related to his employment, the San Diego Police Department demonstrated legitimate and substantial interest of its own that were compromised by [the officer’s] speech. Far from confining his activities to speech unrelated to his employment, Roe took deliberate steps to link his videos and other wares to his police work, all in a way injurious to his employer. [The officer’s activities] brought the mission of the employer and the professionalism of its officers into serious disrepute.”6
Piscottano v. Murphy
In Piscottano v. Murphy,7 decided in December 2007, several Connecticut state corrections officers sued their employer, alleging among other claims that the discipline they received as a result of membership with the Outlaws Motorcycle Club violated their First Amendment rights to freedom of expressive association. The trial court granted the employer’s motion for summary judgment, thereby dismissing all of the claims brought by the officers.
On appeal, the 2nd Circuit Court of Appeals upheld the granting of summary judgment. Specifically, it found the officers’ conduct “had the potential in several ways to disrupt and reflect negatively on the [Department’s] operations, and that [the Department’s] interest in maintaining the efficiency, security, and integrity of its operations outweighed the associational interests of the [officers].”8 The holding was based in large part on the trial court record, which amply described that the Outlaws Motorcycle Club had been involved in the unlawful production of drugs, and that more than 100 members of the Outlaws were imprisoned in federal facilities for charges involving bombings, robberies and murders.
The Bottom Line
This is one of those areas where you must use your common sense. Because you’re in a position of authority and trust, you must ensure you don’t erode that trust by engaging in activities that call into question your police department’s integrity.
Do not construe this column as legal advice. Each police officer should consult with an attorney in their jurisdiction for legal advice on any specific issue.
References
1 Garcetti v. Ceballos, 547 U.S. 410, 126 S.Ct. 1951, 1957 (2006).
2 Pickering v. Board of Educ., 391 U.S. 563, 568 (1968).
3 Connick v. Meyers, 461 U.S. 138, 147 (1983).
4 City of San Diego v. Roe, 543 U.S. 77, 83-84 (2004).
5 543 U.S. 77.
6 Id. at 81.
7 No. 05-3716-cv, 2007 WL 4526841 (2nd Cir. December 21, 2007).
8 Id. at *28.
