August 2018 Warning Bells article

Facebook and the First Amendment

I have joked in the past that an officer should be suspended for five days just for opening a Facebook account. Humor aside, what can happen to you while using the internet is no laughing matter. We see internet comments used in many Internal Affairs investigations. 

How can that be, you say, don’t I have First Amendment rights? Some, but you would be surprised how narrow they are. A recent case out of the Second Appellate District is instructive. It is not a published case that can be officially cited as prece­dent, but it lays out the parameters of how courts view statements on Facebook.

To start off, the First Amendment only has 45 words: “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Govern­ment for a redress of grievances.” We are considering only six of those words here, namely “or abridging the freedom of speech.” Those six words have triggered hundreds of appellate cases.

There exists a wall of books interpret­ing the First Amendment, and entire courses in law school are dedicated to understanding it, so my intent here is not to make you an expert, but to walk you through a case as a practical exercise in how courts can look at Facebook com­ments. You will see similar comments (and far worse) in many of the exchanges on Facebook pages. I am not criticizing either party in any way, but “Warning Bells” need to be rung as to the possi­ble consequences of a Facebook post. Personnel records are confidential, but court opinions are public. The following is from the court’s opinion only.

The facts are simple. A Director posted a link on his Facebook page to a Daily News article about a lawsuit that had been filed. The Daily News article was titled “LAPD officer says she was harassed because of gender, religion, suing City of Los Angeles.” The same day, an off-duty officer posted the follow­ing comment on the Director’s Facebook page: “I was born Jewish, raised Mormon and married to a Catholic that is Japa­nese, Portuguese and German. NOW WHERE’S MY MONEY? Kiss my ass ya greedy house mouse!”

The Department charged the officer with misconduct (improper remark on Face-book) and administered recommended suspension days. The officer opted for a Board of Rights. The Board of Rights found him guilty and recommended an Official Reprimand. The Chief administered the OR. The officer appealed to the superior court in a writ, but the judge denied it. The officer then appealed to the Appellate Court. The Appellate Court upheld the judge’s decision

The officer’s attorney first pointed out that the Department at the time did not have a social media policy and that no manual section was presented at the Board of Rights that showed a violation. Due process requires that an officer be given notice of the standards by which his or her conduct is measured. No policy, no violation.

The court pointed out that the officer was not being punished for violating social media policy, which admittedly did not exist; he was being punished for violating the manual section that prohibits an officer from on- or off-duty conduct that brings discredit to the offi­cer, department or City. (1/210.35)

That issue being disposed of by the court, the claimed First Amendment violation was addressed. Here is where it gets tricky. The appellate court said this: “[T]he First Amendment protects a public employee’s right, in certain circumstances, to speak as a citizen addressing matters of public concern. In determining whether a public employee’s speech is constitution­ally protected, we make two inquiries: (1) whether the employee spoke as a citizen on a matter of public concern and (2) if yes, whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public. So long as employees are speaking as citizens about matters of public concern, they must face only those speech restrictions that are neces­sary for their employers to operate efficiently and effectively.” (citations omitted)

Putting it in plain language, it is a two-step process. First, is your speech about a public concern? If not, you have no First Amendment protection. But if it is, we proceed to the second question. Does the Department’s interest in effective opera­tions justify the restriction of the officer’s speech? In other words, if the Depart­ment’s effectiveness, or efficiency, is negatively impacted by the speech, even if about a public concern, the restrictions (punitive actions) are legal even if the speech is about a public concern.

So, how were these principles applied in this case?

Was the comment a matter of public concern? The court agreed that at least part of the statement was addressing a public concern about litigation against the City by an LAPD employee. The court struggled a bit with the house mouse section of the statement, but ulti­mately decided that although it appeared to be a personal insult, this did not inval­idate the status of the speech being about a public concern. So the first question as to being about a public concern was addressed and determined to be about a public concern. That, however, is not a win. It only allows you to move to the second question.

Now the house mouse comment was revisited. The court noted that “a police department has a substantial interest in developing discipline, esprit de corps, and uniformity.” Furthermore, no actual disruption needs to be shown. There is no necessity to require a department to allow events to unfold to the extent that the disruption actually occurs. The potential disruptiveness of the Facebook com­ment outweighs the First Amendment right. Since it was a Facebook page of an LAPPL Director and the officer’s Face-book page had photos of him in uniform combined with the fact that an actual complaint had been made, it was proven that the derogatory comment “impaired harmony among co-workers and caused potential disruption to department oper­ations.” Therefore, no First Amendment protection. The Appellate Court found that the Department was legally justified in imposing sanctions.

Courts can differ, but what is the basic lesson here? Dump your Face-book account is my recommendation, although I realize that this is not prac­tical advice. Be aware that posts can be viewed by thousands of people, not only your friends and relatives, but your ene­mies as well. Criminal defense attorneys routinely data mine Facebook posts for anything that can be twisted into use against you in court. Add to that the fact that the District Attorney’s ORWITS database can end up memorializing a careless post that may be shared with your arrestee’s attorneys in perpetuity. And, of course, Internal Affairs is always vigilant.

Before pressing the Enter key on your next post, ask yourself this-could this post be viewed as impairing harmony among my co-workers or be considered potential disruption to Department operations? If the answer is “maybe yes,” push the Delete key instead.

Be legally careful out there

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