By Jim Cline
As we all know, “social media” are becoming prevalent. The ubiquity of the Internet and the rapid expansion of other social media such as Twitter and social media pages such as Facebook, create opportunities for communication of astonishing proportions. With that ability to communicate on a larger stage comes one very directly associated problem — the ability to say something incredibly stupid to a much greater number of people on that “larger stage.” Or as one law enforcement blogger described the problem — police agencies now need to develop policies to address the problems associated with “when stupid strikes.”
The problem of stupidity is not new. The arbitration casebooks are filled with one incident after another of law enforcement officers, firefighters, and other public safety personnel engaging in foolish conduct of mind-boggling proportions. The capacity of such employees to engage in stupidity stretches the imagination so much that no Department Code of Conduct can be deemed complete without a “catchall” rule — typically a prohibition on “conduct unbecoming an officer” — because of the potential of officers and firefighters to engage in misconduct that no one had ever conceived possible.
In the pre-Internet world, arbitrators occasionally faced the issue of what to do when “stupid strikes” and an officer said something extraordinarily inappropriate. Usually, these statements were made off-duty and, more often than not, the off-duty statements occurred in a bar or perhaps some other “choir practice” venue. In that pre-internet world, arbitrators generally allowed the employee to slide, recognizing that “blowing off steam” or otherwise making inappropriate expressions were not intended for public consumption, but only for the ears of the immediately visible participants in the conversation.
The Internet seems to change all that. An officer with a lapse of judgment can now vent to a much larger audience — an audience as far-reaching, potentially as the Internet itself.
To that extent, Department efforts to regulate off-duty speech are not new. It is just that now the departments are taking these efforts at regulation with a new degree of urgency. These departments perceive the extent of damage that the speech of a reckless officer can impose to be much more widespread and impactful of the Department’s reputation.
It is also important to bear in mind that nothing in the development of social media either requires or permits a bending of well-established First Amendment principles. Despite Department desires to more fully regulate employee off-duty speech in the Internet world, employee free speech rights as defined by the First Amendment continued to provide a heavy limiting constraint against Department overreaching.
In one sense, though, the context of social media allows some broadening of employer ability to regulate speech beyond that which occurred in the pre-Internet world in the neighborhood bar. An overarching policy defining appropriate speech regulation is the “time, place, and manner” principle. As Marshall McLuhan said “the medium is the message.” To that extent, the same comments that might be made in a semi-private conversation in the neighborhood bar simply are not the same “message” when splayed across the World Wide Web.
One can even visit that World Wide Web to see documented examples of stupidity that would have previously gone unnoticed:
- One New York police officer posted on the Internet, describing his mood as “devious” something that he was cross-examined on within days of that posting.
- One Albuquerque officer listed his occupation on Facebook as “human waste disposal” something later dug up by the local television station after he was involved in an on-duty lethal force situation.
- An Indiana state trooper bragged of the night of heavy drinking with his fellow troopers and posted a picture of him pointing his .357 magnum at the head of another office duty trooper, both appearing in the posted photo to be demonstrating a significant lack of sobriety. That Trooper further posted about his inclination to shoot suspects that might harm him explaining “these people should have died when they were young anyway, I’m just doing them a favor.”
- One Arkansas officer was subjected to cross-examination in federal court on his character after he posted on my space a picture “showing him pointing a gun at the camera, flanked by a skull and the legend ‘the Punisher’”
- A Virginia officer who had ended a high-speed chase with the need to subdue the suspect described “what a good time” he had with the “tussle.”
- One anonymous “Bay Area” officer posted to his Twitter account: “Get those fucking hackers. I’m a cop in the Bay Area CA. I’d go after them with both guns.”
- One Wisconsin 911 dispatcher was fired (although later reinstated by an arbitrator) after she “jokingly” posted on Facebook that “she was addicted to drugs.” (The arbitrator apparently was impressed that her adding “Ha” to the posting confirmed that it was a “joke.”)
- One Missouri police union official “joked” that a Texas state trooper charged with sexually assaulting women during traffic stops was simply providing “customer service.”
These cases and a growing number of others have caused Departments to consider the need to impose social media specific policies. To some extent, this has been an overreaction, because in most cases, existing codes of conduct adequately cover the Department need for oversight. Again, there is nothing new about the potential for employees to say stupid things; it simply now more possible for employees to be stupid on a grand scale.
It is clearly possible, well more than possible, for departments to overreach. We witnessed that locally in the recent case touching on the Renton Police Department. Two different Renton supervisors were demoted after it was alleged that they had some participation in posting a series of parodies on the Internet which mocked other department managers and mismanagement of the affiliated correctional agency SCORE.
The 9 sharp edged parodies most likely involved protected free speech as it seemed attach on a matter of “public concern” involving the ineptitude, if not corruption, and on- duty sexual misconduct of other members of the force, including high-ranking managers. Faced with litigation, the Department had to compromise on both discipline cases.
So, just as the Internet provides employees more opportunity to say stupid things, the regulation of the Internet conduct provides public safety managers more opportunities to also overreact and violate employee’s rights in the process. In Part 2 of this two-part series, we will address many of the problems we see in some misplaced Department social media policies. And we’ll lay out elements of what we believe is a constitutionally sound and balanced set of social media regulations.
