First Amendment for Public Employees Update

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I was recently contacted by a law enforcement officer asking if I was aware of a case out of North Carolina which ruled in favor of some police officers in regard to a disciplinary action involving posts made to Facebook.  I was aware of this case and I think it is important to put this in context for FOP members in Louisiana.  First and foremost, it is important to recognize that this case, Hebert E. Liverman and Vance R. Richards v. City of Petersburg, et al, 2016 WL 7240179 (not yet published) ,comes out of the U.S. Court of Appeals, Fourth Circuit.  This is important because the case does not constitute binding precedent for the U.S. Court of Appeals, Fifth Circuit — Louisiana’s court.  This case could be persuasive precedent, but it is not binding.  That means the argument could be adopted by the Fifth Circuit if a similar case were to be brought here, but the court does not have to adopt it.

More particularly, two officers of the City of Petersburg Bureau of Police were disciplined with an oral reprimand and 6 months of probation for violating the department’s regulations on social media.  The department’s regulations on social media read as follows:

J.A. 161 – Negative comments on the internal operations of the Bureau, or specific conduct of supervisors or peers that impacts the public’s perception of the department is not protected b the First Amendment free speech clause, in accordance with established case law.

J.A. 162 – Officers may comment on issues of general or public concern (as opposed to personal grievances) so long as the comments do not disrupt the workforce, interfere with important working relationships or efficient work flow, or undermine public confidence in the officer.  The instances much be judged on a case-by-case basis.

Generally, Liverman made a post on Facebook expressing his opinion on rookie officers being assigned as instructors for his department.  Richards replied to Liverman’s post expanding on that post discussing new officers being placed in specialized units.  Liverman replied again and Richards again replied to Liverman’s reply.

In short, the court held that the Supreme Court set forth how to analyze whether a public employee’s speech was protected speech in its rulings in Pickering and Connick.  There are three questions that have to be answered:

  1. Was the employee speaking as a member of the public on a matter of public concern?
  2. Does the employee’s interest in First Amendment expression outweigh the employer’s interest in the efficient operation of the workplace?
  3. Was the protected speech a substantial factor in the employer’s decision to take adverse employment action?

The Fourth Circuit came to the conclusion that the officers were, in fact, speaking as members of the public on a matter of public concern.  The court went on to conclude that the second and third prongs of the test set forth in Pickering and Connick were also met, making the Facebook comments protected speech.

More importantly, the court held that the regulations themselves were unconstitutionally overbroad.  The reasoning of the court was that the regulations constituted prior restraint of protected speech.  As evidenced by this case, the regulations did lead to discipline of protected speech.

Many of you may have regulations similar to the regulations at issue in this case.  It has long been my belief that these regulations are overbroad and I still think that they are.  This case supports my contention that they are overbroad.  The NOPD regulation on social media reads as follows:

Employees shall not post any material on the internet including but not limited to photos, videos, word documents, etc. that violates any local state or federal law, and/or embarrasses, humiliates, discredits or harms the operations and reputation of the Police Department or any of its members.

It is my opinion that this regulation suffers the same constitutional shortcoming identified in the Petersburg case.  However, the Petersburg case means does not control what happens in Louisiana.  We may, one day, have a chance to argue for a similar ruling here.  But until that happens, please be careful with posts made to Facebook, Twitter, etc.

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