Back to the Mar-Apr 2020 issue

Police and Social Media: How to Prevent and Prepare for Problems

By Jana O’Leary Sullivan

Cities, in general, and police departments, in particular, can find themselves in the midst of a controversy and media firestorm for many reasons — a public dispute or scandal, an officer-involved shooting, or some other incident.

More and more, though, such controversies occur because a police officer posted something dumb and/or offensive on social media.

Certainly, police officers are not the only ones causing controversy with social media posts, but given the nature of the job and the heightened scrutiny on law enforcement in general, the public and media pay attention to what police officers say on social media. In turn, a police officer’s offensive post can carry heavy consequences to the city employer and — ultimately — to the officer.

You can’t foresee every possible social media-related problem. But cities and police departments can take steps to prevent such situations from occurring and address them if they arise.

Understand freedom of speech

The first step is to understand the law. Many people — including city employees themselves — think they have a First Amendment right to say almost anything they want, without consequences, especially on their own social media account and when they are off duty. Quite simply, they are mistaken.

While the First Amendment generally protects the freedom-of-speech rights of people, those rights are not absolute. Instead, the First Amendment protects a public employee’s speech (including social media posts) when the speech relates to a matter of public concern, and the employee’s interests in speaking outweigh the employer’s interests in restricting the speech. Other laws can also protect a city employee’s speech (including complaints about the workplace), but these laws have limits, too.

Courts have found that public employers have strong interests in fostering public trust (especially with law enforcement personnel), efficiently providing public services, and maintaining workplace discipli

ne and harmony.

Ultimately, when the city’s interests in restricting the speech outweigh the employee’s interests in engaging in the speech, the city can take action, including disciplining and possibly terminating an employee for his or her speech.

Educate employees

You also need to educate your employees — especially supervisors and police personnel — about the city’s expectations and limits regarding social media and other speech.

One way cities can educate and communicate expectations is by implementing and providing training on a social media policy. The technology and law surrounding this area is constantly evolving, so there should be regular discussion about these issues.

The League of Minnesota Cities offers a model social media policy in Section 1.06 of its Personnel Policy Model, available at www.lmc.org/personnelmodel.

Address the employment issues

Once employees are educated, it’s important that you enforce the city’s policies, being mindful to treat similarly situated employees similarly. When you find out about an officer’s offensive social media post (or other speech), you should act.

Work with your city attorney to decide how to handle the officer’s employment, considering the nature of the post (or other speech), employment history, the nature and scope of any controversy, and other factors.

As a public employer, you do not have to wait until there is a controversy to act. Instead, you can act when you reasonably predict that a controversy will occur.

Also, it is irrelevant whether the speech happens while at work or off duty, at a public event or a private social gathering, in a newspaper opinion column or on a private social media account. What matters is the effect on the workplace and/or the nexus between the speech and the employee’s job duties.

While there are no hard and fast rules, the more offensive the speech and the more powerful/ impactful the employee’s position, the more likely the city employer can take action. There are many examples across the country where an employer’s discipline was upheld when a police officer posted something on social media that was racist, sexist, otherwise discriminatory, or promoted violence or unlawful conduct.

Be prepared

Make sure your city works with its attorney to be prepared for any potential controversies. Your tentative game plan should cover (1) handling media and public inquiries; (2) handling the city’s own social media accounts; (3) addressing the employee’s employment status, including consideration of paid administrative leave, hiring an outside investigator, discipline, etc.; and (4) maintaining workplace order.

Jana O’Leary Sullivan is assistant defense litigation supervisor with the League of Minnesota Cities. Contact: jsullivan@lmc.org or (651) 281-1243.