Posted by Michael Rains Ellen Rosenbluth
It probably comes as no surprise to anyone in this computer age that anything you post online, including on Facebook, Twitter, or other social networking sites, maybe open for viewing by anyone, including your employer, and can expose you to punitive action. This is especially true for peace officers who are held to higher standards of conduct than other public employees.
It goes without saying that every peace officer is expected to adhere to established departmental policies, procedures, and manuals. Similar to any other action described in a policy, procedure, or manual, you may be disciplined, up to and including termination, for a violation of a policy addressing social networking. Every peace officer is responsible for knowing what policies exist and for following them.
For instance, many departments have a policy forbidding “gun glorification.” Our firm has represented clients who, without regard for these policies, have posted pictures of themselves holding guns on sites such as Facebook.
In some of these cases, peace officers who included pictures of themselves engaged in lawful work-related activities, such as firing duty weapons at a gun range have not been subjected to punitive action. However, those who aimed a gun at the camera or who posed with weaponry, either with another officer or a civilian, have faced discipline, sometimes termination.
While this type of conduct should be addressed by specific policies, in the absence of those writings, photographs posted on the internet can be interpreted by the employer as inappropriate or too aggressive and subject the officer to punitive action under the general banner of “conduct unbecoming,”
The challenges faced by law enforcement officers on this issue are not unique to California. In August 2009, in Midland, Texas, one county deputy was fired, and three others were suspended, after taking pictures of a scantily dressed waitress holding a rifle on the hood of a patrol vehicle.
The department noted that this incident was especially problematic because the pictures were posted on the Internet and “seen by everyone.”
On May 30, 2006, the United States Supreme Court confirmed in Garcetti v. Ceballos (2006) 547 U.S. 410, that while police officers retain some possibility of First Amendment rights regarding public statements made outside of the course of performing official duties, they have no First Amendment right to make statements pursuant to their official duties.
When speaking on matters outside of the course of official duties, the officer must be discussing a “matter of public concern” (i.e., waste of public funds) to be protected, but still runs the risk of discipline if the speech disrupts the efficient operation of the department.
What does this mean about peace officers’ use of social networking sites? Choose your comments carefully. You should not disparage your agency, supervisors, or co-workers on a social networking site.
You should not discuss anything involving your official duties. You should not post anything which will affect how the public sees the department.
When in doubt, DO NOT post! A social networking site is not the place to express your anger. Assume that the posting will be read by every member of the department.
It is probably a bad idea for you to post pictures of yourself partying and/or drinking alcohol. In one case, an officer was disciplined for posting a picture which the department deemed to be contrary to the professional image a police officer should maintain. Another officer found himself in trouble when his picture contained persons who were minors in possession of alcohol.
A gray area arises when an officer maintains a social networking site but does not identify himself/herself as an officer on the site. If the officer is speaking solely as an individual, he/she should be afforded First Amendment protections.
However, because anything the officer posts can be forwarded by another person, and that other person might attribute the post to “Officer” Jones, the better approach to take is to avoid posting material which might be characterized as bringing the officer and/or the agency into disrepute.
We know that criminal defense attorneys have begun searching social networking sites to look for information they can use against officers in legal proceedings. Comments that imply that an officer has used force on someone, especially certain groups of people, are being introduced to show that the officer has a predisposition or bias against defendants. Assume that defense attorneys will produce your postings during legal proceedings to discredit you.
Civil lawsuits seeking monetary damages alleging defamation are also being filed against individuals based solely on comments made on social networking sites. Because it is so easy to post on a social networking site at any time of the day or night, people often post something in the heat of the moment that they otherwise would not say after they had time to reflect. It is, of course, important to think about consequences before posting.
Some believe that they are protecting themselves from liability by requiring a password before anyone can read posts on a social networking site. Unfortunately, password-protected sites may still be accessible to those you do not wish to visit.
Recently, one of the authors of this article “Googled” a website which required a password to enter. We were able to gain access to one of the directories of the site (although not the home page), where we accessed information which was allegedly protected.
In addition, if you allow someone access to your site, that person may, in turn, forward the information to someone who doesn’t have your password and thereby gains access. Once the information is forwarded, it is there for all to see.
If you choose to post on social networking sites, be sure to restrict your personal information. You do not want a member of the general public with a grudge against you to know the identity of family members, where you live, or to have your personal phone number.
On a positive note, many employers and others look to social networking sites to discover information about you. Highlight your accomplishments and advanced training. Think of your site as an electronic resume.
Don’t fall into the trap of letting what feels like a little bit of fun online ruin your professional career. Follow what we call the Golden Rule of social networking: If you don’t want your department to see what you’re posting, don’t post it.