A number of years ago, I wrote an article on the then-new trend of imposing discipline for certain information officers put out on social media. Fast forward a number of years and now this trend is no longer so new. In fact, since I first wrote on this subject, we now have a formal policy pertaining to your use of social media. And over the years, the cases and disciplines stemming from your use of social media have only increased. So here is an update on what you need to know.
At the time I wrote that, I shared with you some examples of where someone had one of their social media posts used against them. These examples included students fined, charged or convicted based upon posts they had made and employees fired over inappropriate messages regarding fellow employees. In the context of law enforcement, I shared the following:
- A state trooper in Indiana was investigated for questionable entries on his Facebook page as well as for whether they were made while he was on duty. The Facebook postings at issue contained references to himself as a “garbage man,” and referred to those he arrests as “trash.” On the page, he also bragged about heavy drinking and included photographs of himself pointing a gun at his head and drinking a beer. Yet another posted picture depicted a crashed police cruiser. He also posted an entry stating that individuals who resist arrest and threaten police officers would “probably end up shot.” The subject officer resigned while the investigation was ongoing. (Officer.com)
- A Florida sheriff’s deputy was fired after an investigation confirmed that his MySpace page revealed his heavy drinking and a fascination with female breasts. (Independent.co.uk, “Facebook can ruin your life. And so can MySpace, Bebo.”)
Since these examples occurred, there has been a rash of cases involving law enforcement in which the consequence of postings made in poor taste on these social networking sites has led to discipline, termination and even criminal convictions. There are some more recent cases that are frequently cited in discussing law enforcement discipline and social media. One involved a New York officer who regularly expressed his views on social media, and even referred to himself on the day of a particular incident that led to this matter as “devious” and said he was watching Training Day to brush up on proper police procedures. When an individual he arrested went on trial, the defense attorney used these postings to successfully impeach the officer.
The reality is that today, more than ever, schools, attorneys and current and potential employers are regularly monitoring these pages for what might be deemed inappropriate content, both as to potential new and current employees.
And of course, now the Department has its own social media policy. Here is what you should know about it. To begin with, the policy, 4/103.27, has provisions that speak to “on-the-job use” of social media as well as provisions directed to “personal use” of social media. As it is, the personal use of these forums typically leads to discipline in certain instances, and that is what the remainder of this article will focus on. As you read through the portions of the policy highlighted below, note that there are some “precautionary” portions of the policy as well as some outright “prohibitions.”
- While you are free to express yourselves as private citizens on social media, you are cautioned against impairing working relationships for which loyalty and confidentiality are important, and you are cautioned against impeding the performance of duties, impairing harmony among co-workers or negatively affecting public perception of the Department.
- You are cautioned that speech made pursuant to your official duties (that owes its existence to your professional duties and responsibilities) is not protected speech under the First Amendment and that it may be the basis of discipline. In this regard, the policy cautions you to assume that your speech and related activity on social media will reflect on your office and the Department.
- You are cautioned not to disclose your employment with the Department (including the display of logos, uniforms, badges, photos, etc. that would identify you as a Metro officer), nor post information about another Department member without their permission.
- Other cautionary provisions include being mindful that once a photo has been posted, it can never be purged out of existence, never assuming that information you post is truly protected, and expecting that the Department may access information that you put out on social media without prior notice.
- You shall not access your personal social networking sites while on duty.
- You shall not post or in any way disseminate any information which you have received through your employment without written permission from the Sheriff or his designee.
- You must be mindful that social media speech becomes part of the worldwide electronic domain, and as such, you are required to adhere to the Department’s code of conduct. In other words, by way of example, you are prohibited from using speech that contains obscene or sexually explicit language, images, speech or statements that ridicule, disparage or otherwise express bias against a protected class, and speech involving you and other Department members that would reasonably be considered reckless or irresponsible. The policy explains that engaging in these prohibited speeches may provide grounds for undermining or impeaching an officer’s testimony in a criminal proceeding and uses this justification as a basis for discipline for this type of speech.
- You may not divulge information gained by reason of your authority as an officer, nor may you make statements, speeches, appearances or endorsements or publish materials that could reasonably be considered to represent the views of the Department without express authorization.
- Finally, you are advised in the policy that you should be aware that you may be subject to civil litigation for publishing or posting false information that harms the reputation of another person, group or organization; for publishing or posting private facts and personal information about someone without their permission that has not been previously revealed to the public, is not a legitimate public concern, and would be offensive to a reasonable person; for using someone else’s name, likeness or other personal attributes without that person’s permission for an exploitative purpose; or for publishing the creative work of another, trademarks or certain confidential business information without the permission of the owner.
So what does all this mean? Good question! I find much of it confusing and lacking in clear guidance. While I do believe that some aspects of this policy could be challenged, especially given the lack of clarity as to what it is trying to prohibit, don’t count on any particular aspect of it going away. These policies have become commonplace nationwide, and it appears that courts are finding them acceptable.
Some have complained that it is legally or ethically inappropriate for policing agencies and other employers to use information posted on these sites for investigatory and/or disciplinary purposes. The argument is that, despite your position as a law enforcement public employee, you still have a right to free speech under the First Amendment. However, you should be aware that the Supreme Court has ruled in favor of government employers limiting private speech of their employees in the past. (Roe v. City of San Diego, 543 U.S. 77 )
Others argue that using these postings against the individual who made them is a violation of that person’s right to privacy and/or the person’s right against unlawful search and seizure. Again, however, it seems unlikely that someone would be able to make a credible argument that he had an expectation of privacy in such a posting given the design of these forums, which, by their very nature, are meant to be public forums that others can use to search you out. With this in mind, not only would it be hard to argue one has an expectation of privacy in what he is posting, it is also doubtful that society will be prepared to recognize an expectation of privacy in this type of social networking as reasonable.
Still think social media is all in good fun, just a simple way to mass communicate with all your friends at one time? Well, you might want to think twice. Don’t be fooled into thinking that anything you post on Facebook is private. No matter how seemingly harmless and no matter your intent on who it reaches, often the information gets to many more readers than the original or intended audience. And often it is seen in a different light than you may have intended. Common sense and intelligence dictates what you need to do to avoid a sustained complaint of this nature. Please keep in mind that arbitrators in public sector cases often find it easy to uphold discipline to an employee for off-duty misconduct, as both arbitrators and the courts have tended to protect the government employer’s reputation and mission, citing the public trust as the reason. The stakes are high — you could lose your job. Don’t become one of the statistics.