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By PORAC | April 1, 2016 | Posted in PORAC LDF News

Social Media Postings are a Trap for the Unwary Police Officer

Rains Lucia Stern, PC

At the PORAC Conference last November, I presented a class on issues relating to social media postings by police officers, and discussed a number of cases where officers had been severely disciplined or fired for social media posts. One of the cases I discussed was a case I was handling for Officer Phil White, who was terminated for two tweets that appeared on his Twitter page, which the Department and members of the public found to be highly inappropriate. The tweets occurred during the highly charged and emotional time when there were violent clashes between police and demonstrators arising out of the Michael Brown case in Ferguson, Missouri, and the Eric Garner case in New York. The tweets were also a response to serious physical threats Officer White had received on his Twitter page from a stranger whose hateful messages suddenly appeared on Twitter. Prior to being fired for the two tweets at issue, White had enjoyed a virtually unblemished 18-year law enforcement career.

As I predicted during my presentation at the PORAC Conference, Arbitrator Matt Goldberg reinstated White following arbitration. In doing so, Goldberg relied heavily upon White’s lengthy and stellar career, and the fact that he was responding to highly provocative and serious threats by a stranger threatening to come to his house. Goldberg also sided with my argument that the City failed to prove that the tweets in question disrupted the ability of the Department to provide delivery of police services to its constituents.

Although Goldberg made the right decision in reinstating White, it does not change the fact that the officer was out of work for a period of time and had to endure the agony and embarrassment of media coverage and public criticism.

There are probably a lot of police officers reading this article who, like White, get news and communicate with friends and family members through such social websites. These websites also provide their users with an opportunity to comment on important social and political issues at hand. Still, any police officer who maintains a social media account should be aware that there is great danger lurking for officers who post or tweet statements containing controversial content or objectionable tone that are made public, along with the officer’s identity. That is, of course, what happened to White and to several other officers whose accounts I discussed in my presentation at PORAC.

If it were possible for police officers to maintain a social media presence without alerting the people with whom they communicate that they are police officers, they would be much more likely to avoid the problems that have occurred with so many officers whose tweets or posts got them into trouble. But keeping an officer’s identity secret on social media postings is virtually impossible, something recognized by the Ninth Circuit Court of Appeals in an opinion entitled Dible v. City of Chandler, 502 F.3rd 1040, 1046, a case in which an officer was fired for social media postings. It is really hard to disagree with the language of the court: “Ronald Dible took some pains to keep the police out of the pictures, but because of other clues and information, it became publicly known that he was involved and that he was a police officer. Certainly it can be seriously asked whether a police officer can ever disassociate himself from his powerful public position sufficiently to make his speech (and other activities) entirely unrelated to that position in the eyes of the public and his superiors.”

For those of you who are considering the possibility of creating a social media account or are maintaining an existing account, the best advice I can give you is: 1. Don’t set one up to begin with, and 2. If you have one now, take it down. I realize that advice may chill your freedom of expression or even your right to associate with others, but in the final analysis, it might also enable you to avoid a disciplinary action that seriously affects your law enforcement career and maybe even ends it altogether.

Some Thoughts on Defending Officers in Social-Media-Related Discipline Cases
While I continue to believe that social media postings by police officers make them vulnerable to allegations of conduct unbecoming an officer and bringing disrepute to their employers, there are some arguments in the social media context that can and should be made in defense of officers who are disciplined for this type of off-duty conduct.

First, we all must understand that the law typically lags far behind the development of technology, and in the area of social media, this has never been truer. Indeed, we really do not have a clear body of law that governs social media postings, including the right of free speech and the dissemination of ideas by law enforcement officers in California. For the most part, in deciding issues concerning social media postings by police officers, we are currently guided by decisions of the courts, which measure the right of public employees to freedom of speech versus the adverse impact that the dissemination of controversial or inappropriate messages can have on the image of their employer and the delivery of police services to the public.

What most of these cases boil down to is that the department imposes discipline on an officer on the basis that the inappropriate tweets or posts injured its image with the public or caused disruption of the delivery of police services by eroding the close working relationship between employees, or eroding the public’s trust in the department. But when push comes to shove, in most of these cases, the employers are not able to show actual disruption of the delivery of police services, which is precisely what happened in the White arbitration.

In Connick v. Myers, 461 U.S.138 (1983), the U.S. Supreme Court said, “real, not imagined disruption is required, and the ‘close working relationship’ exception cannot serve as a pretext for stifling legitimate speech or penalizing public employees for expressing unpopular views.” The Ninth Circuit Court of Appeals in Kannisto v. City and County of San Francisco, 541 F.2nd 841 (1976), held that “even in a police department, the complaint of disruption must be real and not imagined.”

In Fazio v. City and County of San Francisco, 125 F.3d 1328, 1331 (9th Cir., 1997), the court identified specific factors that an employer must prove in order to establish disruption in the workplace. According to the court, when the employer claims that the employee’s speech disrupted the workplace, “we have inquired whether the speech (1) impaired discipline or control by superiors, (2) disrupted co-worker relations, (3) eroded a close working relationship premised on personal loyalty and confidentiality, (4) interfered with the speaker’s performance of his or her duties, or (5) obstructed routine office operations.” The net effect of all of these decisions is to make sure that police officers are not terminated upon a knee-jerk reaction to bad publicity resulting in an unproven assertion by an employer that an officer’s tweets or posts caused disruption in the workplace that required the officer to be disciplined.

There is still another, even more significant, issue that is unresolved by courts in California relating to social media posts by police officers. Until now, cases that have considered whether an officer’s speech on social media was improper have applied a five-part test, sometimes called the Pickering Test, based upon the United States Supreme Court case Pickering v. Board of Education, 391 U.S. 563 (1968). It is both my belief and hope that California courts will depart, in future social media cases, from the Pickering Test and instead apply a different and legally correct standard for analyzing an officer’s free speech rights in this state.

Since the five-step Pickering Test was based upon the U.S. Supreme Court’s interpretation of the First Amendment freedom of speech rights under the United States Constitution, it is not the proper test to evaluate free speech rights of police officers in California. Rather, California peace officers’ rights to freedom of speech must be evaluated by referring to the California Constitution, Article 1, Section 2, and Article 1, Section 24.

Article 1, Section 2, of the California Constitution states, “every person may speak, write, and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge the liberty of speech or press.”
Article 1, Section 24, of the California Constitution states, “rights guaranteed by this constitution are not dependent on those guaranteed by the United States Constitution.”

It is clear from California court decisions that have interpreted the California Constitution that California public employees, including police officers, are entitled to broader free speech rights than those articulated by the U.S. Supreme Court under the First Amendment of the U.S. Constitution and other federal cases that follow the five-part Pickering Test. The fact that police officers’ free speech rights may differ in California than those declared to exist by the U.S. Supreme Court under the First Amendment was very clearly articulated in the case East Bay Asian Local Development Corporation v. State of California (1999), 69 Cal.App.4th 1033, 1043, where the court stated: “California courts must independently determine the scope of provisions of the State Constitution … When appropriate, we may interpret rights set forth in our Constitution by a different standard than applicable to similarly worded clauses in the federal Constitution so long as those rights extend equal or greater protection to those guaranteed by the federal Constitution.”

The clearest pronouncement that California police officers may be entitled to greater free speech rights than those articulated by the federal courts interpreting the federal Constitution is contained in the California Supreme Court decision entitled Gerwin Farming Inc. v. Lyons (2000), 24 Cal.4th 470, where the court stated: “Article 1 (of the California Constitution) and the First Amendment are altogether different because only Article 1, and not the First Amendment, affirmatively declares as a ‘right’ that ‘[e]very person may freely speak, write, and publish his or her sentiments on all subjects.’ Hence, Article 1 itself grants a right to freedom of speech and does not merely safeguard such right against encroachment.… Article 1’s free speech clause and its right to freedom of speech are not only as broad and as great as the First Amendment, they are ‘broader and greater’” (emphasis added).

I raised the issues concerning the California Constitution’s broader and greater free speech rights in my post-arbitration brief in Officer White’s case, but the arbitrator, as I expected, ducked my invitation to declare that White’s free speech rights were greater than those allowed under the First Amendment of the U.S. Constitution and that the Pickering Test did not apply in evaluating his conduct. I believe this legal fight must be waged in court, and an ultimate decision will not come as a result of an arbitration award, but as a result of a judicial determination.
In closing, I do not want anyone who is reading this article to believe that police officers in California are insulated from disciplinary action, including termination, whether because: 1. They have enjoyed a long and stellar career, 2. They do not believe their employer can prove that their intemperate social media postings disrupted operations within the police department, or 3. They have much broader and greater free speech rights in California than the U.S. Supreme Court has afforded police officers in other states, based upon its interpretation of the First Amendment of the U.S. Constitution.

When all is said and done, it is still best and safest for officers to avoid postings and tweets on social media websites, particularly where they may be discussing ideas, social issues or political issues that may be viewed by some as controversial or even repugnant to popular thinking. But for those officers who find themselves in a disciplinary jam because they have taken advantage of the availability and popularity of communicating via social media, I believe they may have greater leeway to engage in such conduct in California than if their conduct was interpreted solely based upon the Pickering Test and the First Amendment of the U.S. Constitution. As much as I never look forward to having a police officer client terminated, I do look forward to the opportunity, someday, to change the state of law in California as it relates to police officers and their right to speak, tweet and post without the current fear of incurring disciplinary action.

About the Author

Mike Rains is a principal and founding member of Rains Lucia Stern. He heads the firm’s Criminal Defense and Legal Defense of Peace Officers Practice Groups. Mike is one of California’s top trial attorneys, with over 30 years of experience representing peace officers and other high-profile clients in civil and criminal litigation. Mike’s practice focuses on criminal trial work in both state and federal courts. He also handles civil and labor-related actions, and has served as both defense and plaintiff’s counsel in state and federal court employment cases.