The following is a re-post of an article by Julie Tappendorf from The Municipal Minute, an Ancel Glink local government blog that she edits...
In 2013, a Virginia police department adopted and implemented a social media policy for its police officers. The policy, among other things, prohibited police officers from posting negative comments about (1) the internal operations of the department and (2) specific conduct of supervisors or co-workers that would impact the public perception of the department, stating that such comments were not protected by the First Amendment. The policy also stated that while officers could comment on matters of general or public concern, the comments could not disrupt the workforce, interfere with working relationships or workflow, or undermine public confidence in the officer.
Relying on the social media policy, the department disciplined two officers for Facebook posts they made about co-workers, supervisors, and the department while off-duty. The posts included comments about their disagreement with recent promotions, and coworker conduct and the promotion of certain officers that the two officers believed should not have been promoted. The posts also included discussions about their supervisors and lack of leadership in the department.
Both officers were given an oral reprimand and six months' probation. The officers sued under § 1983 alleging the department's social media policy violated their First Amendment free speech rights. The case made its way to the Fourth Circuit Court of Appeals. That Court found the department's social media policy unconstitutional and held that the disciplinary measures taken against the officers pursuant to that policy were impermissible.
The Court's specific issue with the social media policy was that it was overbroad because it bans employees from speaking on matters of public concern - in this case, speech that is critical of the government employer. The Court had specific concerns with policy provisions that ban social media posts that fall within the following categories:
- Posts that "would tend to discredit or reflect unfavorably" on the department.
- "Negative comments on the internal operations" of the department.
- Discussions about the "specific conduct of supervisors or peers."
In the Court's view, these prohibitions impose a significant burden on the right of government employees to speak out on matters of public concern.
The Court then held that the department could not rely on the policy as a basis to discipline the officers for their social media activities, particularly where the posts fell within the provisions cited above that were found unconstitutional. Liverman v. City of Petersburg (4th Cir. 2016).
