Free speech, social media, and immunity

Just about every law enforcement agency has a social media policy. I have litigated many disciplinary actions involving them and with few exceptions, there’s not a dime’s difference between any of them. They seem to derive from and track the general “do not do anything that tends to bring discredit upon the department” policies and codes of conduct we have all seen. However, it is time for agencies to revisit those policies and the stakes are getting high for law enforcement executives who refuse to do so.

On December 15, 2016, the Fourth Circuit Court of Appeals issued an opinion in the case of Livermore v. City of Petersburg which will send shock waves throughout law enforcement in the United States. The case set out a new analysis of what is protected free speech, how social media posts will be examined in light of the First Amendment, and if law enforcement officials who discipline LEOs in response to social media posts will enjoy immunity from suit.

The language of the social media policy was pretty standard and you can read it through the link above. Interestingly, the Facebook posts at issue concerned LEOs with little seniority becoming supervisors and instructors and questioned the wisdom of these decisions. The Fourth Circuit held that such posts could be a matter of public concern or more simply, the public might be interested and care about such decisions. Therefore, the court found the posts were protected free speech.

Once the court determined that the social media posts were protected by the First Amendment, the court went on to hold that the law protecting these posts was clearly established and therefore the chief was not entitled to qualified immunity in the lawsuit. This means that he could face personal liability in the lawsuit.

I have long advocated that police chiefs and sheriffs need to have thicker skin when it comes to social media posts. Every social media comment by a line level LEO who disagrees with a decision or policy does not impair the function of the agency.

While LEOs should use common sense about their social media posts, this decision provides a framework to defend many LEOs who may be facing or will face discipline. Make sure you have the Fraternal Order of Police Legal Defense Plan so you have the resources to fight for your career. Stay safe.

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