SOCIAL MEDIA: LEGAL
CHALLENGES AND PITFALLS
International Association of Chiefs of Police
Legal Officers Section
September 29, 2012
SOCIAL MEDIA – SPECIAL
CONSIDERATIONS FOR LAW
ENFORCEMENT


SOCIAL MEDIA – HERE TO STAY
ISSUE FOR THOSE OF US IN LAW
ENFORCEMENT: HOW DO WE RESPECT
EMPLOYEES’ CONSTITUTIONAL RIGHTS WHILE
ENSURING THAT THEIR USE OF SOCIAL MEDIA
DOES NOT ADVERSELY AFFECT DEPARTMENT
OPERATIONS?
SOCIAL MEDIA – SPECIAL
CONSIDERATIONS FOR LAW
ENFORCEMENT

“This is something that all police chiefs
around the country, if you are not dealing
with it, you better deal with it.” (Mark A.
Marshall, Chief of Police in Smithfield, VA.
– President of the IACP.)
SOCIAL MEDIA – SPECIAL
CONSIDERATIONS FOR LAW
ENFORCEMENT




GENERATIONAL ISSUES – EVOLVING STANDARDS OF
WHAT CONSTITUTES PRIVACY
EASE OF POSTING THOUGHTS/OPINIONS ON SOCIAL
MEDIA – THERE IS OFTEN LITTLE THOUGHT OF
POTENTIAL IMPACT OF THE “SPEECH”
MISTAKEN PERCEPTION THAT POSTING IS “PRIVATE”
SPEECH – INFORMATION IS EASILY SHARED; PLACED
IN THE PUBLIC DOMAIN.
RECENT EVENTS – POLITICIANS, CELEBRITIES, ETC.
SOCIAL MEDIA – SPECIAL
CONSIDERATIONS FOR LAW
ENFORCEMENT

Ray Shultz of the Albuquerque Police
Department was quoted in a recent news story
as saying “You need to get a handle on this very
quickly, because this has the potential to
damage the reputation of the organization and
also adversely affect you in the courtroom.”
Chief Shultz added that some social media sites
are “like the bathroom wall of 20 years ago,
except now the entire world can see it.”
EXAMPLES OF WAYS SOCIAL
MEDIA CAN DETRIMENTALLY
AFFECT A POLICE
DEPARTMENT





I. Revelation of sensitive/restricted departmental
information/communications.
II. Sexually explicit communications (Both on and offduty).
III. Defamatory material.
IV. Derogatory communications targeted at protected
classes of persons.
V. Communications adversely impacting judicial
proceedings. (Brady/Giglio issues)
EXAMPLES OF CASES WHERE
OFFICERS’ USE OF SOCIAL
MEDIA ADVERSELY IMPACTED
JUDICIAL PROCEEDINGS OR
OTHERWISE CAST THE
DEPARTMENT IN A NEGATIVE
LIGHT
(Or should we just call them “Facebook Horror
Stories?”)
PEOPLE V. WATERS, (Kings Co.
NY Sup. Ct. 2009)





Defendant was charged with felony gun
possession.
Defense theory that arresting officer
planted the gun.
Police officer had a MySpace account.
Near time of arrest of Defendant: Mood
description was listed as “devious.”
Status: “Watching Training Day” to brush
up on proper police procedure.
People v. Waters, cont.




Officer had also posted comments online regarding
video arrest clips:
““If [officer] wanted to tune him up some, he should
have delayed cuffing him;” “if you were going to hit
a cuffed suspect, at least get your money’s worth.”
Defendant, on parole for burglary, was acquitted of
the most serious charges.
Officer’s thoughts: “I’m not going to say it was the
best of things to do in retrospect.” “….stupidity on
the Internet is there for everyone to see for all times
in perpetuity.”
People v. Waters, cont.

When asked about the “Not Guilty” verdict, the
officer stated “I feel it’s partially my fault.” “It
paints a picture of a person who could be overly
aggressive. You put that together, it’s
reasonable doubt in anyone’s mind.”
HOW WOULD THIS OFFICER’S
POSTING BE PERCEIVED IF HE WAS
ACCUSED OF USING EXCESSIVE
FORCE?
CROMER V. LEXINGTONFAYETTE URBAN CO. GOVT.
(2009)

Lexington, KY, police officer arrested singer John Michael
Montgomery for DUI. City officials learned that Cromer
had identified himself as a police officer on his MySpace
page, and had posted words and/or images that
reflected discredit to him, the PD, and impaired the
operation and efficiency of himself and the PD. Such
postings included profane language, comments and
images regarding homosexuals and the disabled,
inappropriate sexual comments, and an altered
photograph depicting him with Montgomery. Both the
trial ct. and the Ct. of Appeals upheld his termination on
grounds of misconduct, inefficiency, and insubordination.
ALBUQUERQUE POLICE
SHOOTING - 2011




Officer shot and killed a subject following a traffic stop.
Had listed his job description on his Facebook page as
“human waste disposal.”
Attorney sought to obtain access to fifty-seven officers’
Facebook pages in order to see if they had discussed the
shooting.
Chief of Albuquerque PD said he was “disgusted” by the
comment and that it will be part of an internal affairs
investigation into the shooting.
ALBUQUERQUE POLICE
SHOOTING, cont.


The officer involved later said that his Facebook
posting was “extremely inappropriate and a
lapse in judgment on my part.”
Albuquerque PD subsequently developed a
Social Media policy for its officers.
NYPD Officers Post Comments Regarding the
Annual West Indian Parade
West Indian Parade
Controversy, cont.



Officers maligned paradegoers on a Facebook page. Some
posts characterized the participants as “animals” and
“savages.” The Facebook page on which the comments
were posted was believed to be accessible to any user of
the site, and consisted of nearly 70 printed pages of
material.
Defense attorneys used the postings in an effort to
discredit the courtroom testimony of an officer who had
“liked” the Facebook page. The officer in question had
arrested an individual in the hours before the parade
started. Many of the postings were referenced during the
trial. The defendant was subsequently acquitted.
17 offficers have since been disciplined by the NYPD for
their part in posting material to the site.
And the Examples Continue:

Peoria, AZ: An officer was disciplined
after posting this photograph on his
Facebook page:
Facebook Posting of Obama
Shirt Riddled With Bullet Holes



The Secret Service and the officer’s
department launched inquiries after the
photo was posted.
The officer was demoted and suspended
by the department due to his violation of
its social media policy and because he
discredited the department.
The discipline was upheld following the
officer’s appeal of the demotion.
FREE SPEECH AND THE PUBLIC
EMPLOYEE



AS LAW ENFORCEMENT ADMINISTRATORS,
WHAT CAN YOU DO TO EITHER PREVENT SUCH
SITUATIONS FROM OCCURING OR PUNISHING
THOSE WHOSE ACTIONS VIOLATE
DEPARTMENTAL POLICY?
WHAT ARE YOUR RIGHTS TO RESTRICT
EMPLOYEES’ “SPEECH?”
WILL THE EMPLOYEE BE ABLE TO ARGUE THAT
WHAT THEY SAY AND WRITE “OFF-DUTY” IS OF
NO CONCERN TO THE DEPARTMENT?
FREE SPEECH AND THE PUBLIC
EMPLOYEE, cont.



WHERE DO WE START?
AN ANALYSIS OF THE SIGNIFICANT FIRST
AMENDMENT CASES THAT HAVE CONSIDERED
THE RESTRICTIONS THAT CAN BE PLACED ON
PUBLIC EMPLOYEES’ SPEECH.
THE GOOD NEWS: ALTHOUGH THE USE OF
SOCIAL MEDIA IS RELATIVELY NEW, EXISTING
LAW PROVIDES ADEQUATE GUIDANCE FOR
PUBLIC ENTITES CONFRONTING THESE
ISSUES. LAW ENFORCEMENT AGENCIES HAVE
DEALT WITH EMPLOYEE-RELATED “SPEECH”
ISSUE FOR MANY YEARS.
FREE SPEECH AND THE PUBLIC
EMPLOYEE, cont.

First Amendment to the Constitution:
“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 people peaceably to
assemble, and to petition the government
for a redress of grievance.”
FREE SPEECH AND THE PUBLIC
EMPLOYEE, cont.


Challenge for Law Enforcement Agencies:
How do we respect employees’ First
Amendment Rights while ensuring that the
agency’s interests are adequately
protected.
First Amendment rights are cherished, but
are certainly not without reasonable
limitations.
FREE SPEECH AND THE PUBLIC
EMPLOYEE, cont.


A principal inquiry for courts when
reviewing public employee free speech
cases is whether the employee made the
statements in their official capacity or as a
private citizen.
The issue is sometimes more difficult
when dealing with law enforcement
officers they are often considered to be
“on duty” at all times.
FREE SPEECH AND THE PUBLIC
EMPLOYEE, cont.



Public employees (esp. law enforcement) vs.
private citizens.
As the Supreme Court noted in one significant
First Amendment case, “when a citizen enters
government service, the citizen by necessity
must accept certain limitations on his/her
freedom.” (Garcetti).
It is this principle that underscores much of the
case law in this area.
FREE SPEECH AND THE PUBLIC
EMPLOYEE, cont


As government employees, we are held to
a higher standard than private citizens.
IACP Code of Ethics was adopted in the
late 1950s. The second paragraph of that
Code, which has become a standard of the
profession, states “I will maintain an
unsullied personal life as an example to
all.”
FREE SPEECH AND THE PUBLIC
EMPLOYEE, cont



Essential analysis when analyzing the First
Amendment Rights of public employees – How
do we go about it?
“SPEECH”: Defined broadly – oral or written
communications and other forms of conduct.
Protection of certain forms of public employees’
speech was recognized by Supreme Court in
Pickering v. Board of Education (1968)
FREE SPEECH AND THE PUBLIC
EMPLOYEE, cont



In Pickering, Court established a balancing test,
weighing the employee’s interest in commenting
on matters of public concern against the
employer’s interest in promoting efficiency of the
public services it renders.
We must always begin the analysis of the
speech in question by determining whether the
employee was speaking as a “private citizen” on
a matter of “public concern.”
If so, then we balance the interests (employee’s
and employer’s) involved.
FREE SPEECH AND THE PUBLIC
EMPLOYEE, cont

We also need to determine whether the
employee’s speech was a motivating
factor in the adverse employment action –
Did the employer have a reason for taking
the action even in the absence of the
protected conduct?
“PRIVATE CITIZEN” OR PUBLIC
EMPLOYEE?



Purely job-related speech: In Garcetti, the
Supreme Ct. held that when public employees
make statements pursuant to their official
duties, the employees are not speaking as
citizens for First Amendment purposes and the
Constitution does not insulate their
communications from employer discipline.
Deputy DA made allegations regarding an
affidavit submitted to obtain a SW.
Later claimed that the DA had retaliated against
him for drafting a memo critical of the warrant.
Garcetti, cont.



Deputy DA filed suit claiming that his rights
under the First and Fourteenth Amendments had
been violated.
Court rejected claim, by stating that government
employers must have sufficient discretion to
manage their operations.
“Our precedents do not support the existence of
a constitutional cause of action behind every
statement a public employee makes in the
course of doing his or her job.”
Garcetti, cont.


Impact of Garcetti: Government employers have
the ability to retain control over speech that
“owes its existence to a public employee’s
professional responsibilities.”
Sup. Ct. acknowledged that exposing
governmental inefficiency and misconduct is of
considerable significance. Although the First
Amendment may not be the avenue to seek
protection for statements made by employees,
there are protections in the form of
“whistleblower statutes” or labor code
provisions.
POST-Garcetti cases of interest to law
enforcement



Foley v. Town of Randolph (1st Cir. 2010): Fire chief
spoke at the scene of a fire in uniform. Commented on
how budget cutbacks had adversely impacted
department’s response. Discipline was upheld as he was
speaking as a public employee and not a private citizen.
Andrew v. Clark (4th Cir. 2009): Officer was terminated
based upon a memo he wrote re: a police shooting.
Memo was shared with a reporter. Officer claimed he
had a First Amendment right to speak about a matter of
public concern.
Because Andrew wrote the memo as a private citizen,
the Court ordered that it be reviewed to determine
whether it addressed a matter of public concern. If so,
then court will need to balance the interests of the
employee, as a citizen, and the interests of the State, as
an employer, in promoting the efficiency of the public
services it provides.
WHAT IS A MATTER OF PUBLIC
CONCERN?




Factors to consider: Context, content and manner of
speech, legitimate news interest or value to society.
City of San Diego v. Roe (Sup. Ct. 2004): Ct. considered
the First Amendment claims of a police officer who was
terminated after the department learned of his sexually
explicit off-duty behavior.
Made video of himself stripping off his police uniform
and masturbating. Sold the video and other items (which
connected him to the SDPD) on the adults-only section
of eBay. The Sup. Ct., in reversing the 9th Cir., upheld
the City’s decision to terminate Roe.
No balancing of interests was necessary as Roe’s
conduct did not touch on a matter of public concern.
Roe, cont.



Termination was upheld as the PD
“demonstrated legitimate and substantial
interests of its own that were compromised by
Roe’s speech.”
Roe’s sexually explicit conduct “brought the
mission of the employer and the professionalism
of its officers into serious disrepute.”
If not a matter of “public concern,” then no need
to apply the balancing test.
Dible v. City of Chandler (9th Cir.
2008)



Officer was terminated by PD
for maintaining sexually
explicit website featuring
himself and his wife. Operated
site for money – no intention
to express any kind of
message or engage in social or
political commentary.
PD learned of site and
dismissed Dible.
Basis: Violated policy from
bringing discredit to the city
service.
Dible, cont.




Court asked “whether a police officer can ever
disassociate himself from his powerful public position
sufficiently to make his speech (and other activities)
entirely unrelated to that position in the eyes of the
public and his supervisors.”
Dible’s activities “brought the mission of the employer
and the professionalism of its officers into serious
disrepute.”
Negative impact to PD – Officers indicated that they
had been questioned and ridiculed about the website. A
female officer claimed she had been called a “porn
whore” by an arrestee.
Concern about its ability to recruit female officers.
Dible, cont.

Court rejected Dible’s First Amendment claim.
“Ronald Dible may have the constitutional right
to run his sex oriented business, but he has no
constitutional right to be a policeman for the
City at the same time.”
Thaeter v. Palm Beach County SO
(11th Cir. 2006)



Court upheld the SO’s termination of sheriff’s
deputy for participating for compensation in
sexually explicit photographs and videos
available for paid viewing on the Internet.
As in the Roe case, the officer’s conduct (or,
“speech”), did not involve a matter of “public
concern.” Therefore, no need to apply the
Pickering balancing test.
Government can legally apply constraints on
employees’ behavior, even if “off duty.”
MATTERS OF PUBLIC CONCERN –
BALANCING OF INTERESTS


Interests of law enforcement employer in
maintaining discipline and harmony in the
workplace, close working relationships, and
community trust and respect must be given
significant weight.
Locurto v. Giuliani (2nd Cir. 2006): Even if it is a
matter of public concern, the government
employer can consider the potentially disruptive
effects of its employees’ actions.
SO HOW DO WE AVOID THESE
PROBLEMS?




Law Enforcement agencies need to provide clear
guidance for their employees regarding the use
of social media.
What to include:
I. Warning regarding the misuse of electronic
media while on duty/employer-provided
computer systems;
II. Prohibition on use of agency name, uniform,
logo, marked vehicles;
DEPARTMENTAL GUIDANCE,cont.

III. Ban on disclosure of confidential information (Should
also prohibit the disclosure of information officers
acquire during the course of their duties unless the
information is authorized for release by the department
or its release is otherwise authorized by law.)
IV. Caution regarding comments/postings that impair
working relationships, impact morale, impact community
relations or otherwise impact the efficiency and
effectiveness of operations.
Consider IACP’s Model Policy

Good start, and can be tailored to meet the needs of


your agency.
Cybervetting Applicants by Law
Enforcement Agencies: Current Issues and
Trends


Cybervetting – As noted in the publication
entitled “Developing a Cybervetting Strategy for
Law Enforcement,” “cybervetting is an
assessment of a person’s suitability to hold a
position using information found on the Internet
to help make that determination.”
The above publication is an excellent resource,
and can be located on the IACP’s social media
website.
Cybervetting


Increasingly common: 91% of employers
surveyed in September 2011 reported using
social networking sites to screen prospective
applicants.
Hiring qualified applicants is particularly critical
in law enforcement. “As social media has
grown, is that this is a really critical component,
and you really gotta make sure you are doing
this.” (San Luis Obispo police captain as quoted
in a local media outlet.)
Cybervetting, continued

Why important: If properly conducted, it will
provide a number of benefits to law
enforcement, such as:
1. Increasing public confidence in police
agencies by ensuring that law enforcement
personnel are not engaged in inappropriate
behavior;
2. Corroborate or contradict information
provided on a resume or job application;
Cybervetting, continued

3. Identify candidates who posted text, audio, or
images that:
a. contain sensitive law enforcement
information;
b. reflect that a subject has engaged in
certain criminal offenses;
c. Indicate that a subject is associated with
hate, criminal, or terrorist organizations;
d. reflect that the subject is a danger to self
or others. (Source: Developing a Cybervetting
Strategy for Law Enforcement)
Cybervetting, continued

The need to exercise caution in this area.
 Concerns about acquiring information about
protected/sensitive information. (i.e., medical
issues, religious beliefs, etc. Will the candidate be
able to allege that he/she was not hired because
this information was made known to the agency?)
 Ensure that your agency’s policy considers current
case law and legislation.
 “Quality control” of vetting process. Is the
information being considered by the agency
accurate? Who is conducting the vetting? Are they
properly trained? How is the information being
protected?
Legislative Trends



Maryland was the first state to enact a law that
prohibits employers from requesting or requiring
that employees or applicants provide their
passwords to social media accounts and other
personal online accounts.
Illinois has followed suit. (Illinois Public Act
097-0875, eff. 1/1/13). There is no exception in
the law for law enforcement or other sensitive
occupations.
Similar bills have been introduced in California,
New York, and Washington. There is also a
push for federal legislation in this area.
Questions?



SSA MICHAEL T. PETTRY
FBI – Office of the General Counsel
Legal Instruction Unit
FBI Academy, Quantico, VA
703-632-1680
MICHAEL.PETTRY@IC.FBI.GOV