Do police officers enjoy same level of free speech as civilians?

Do police officers enjoy same level of free speech as civilians?

August 17th, 2016 by Ariana Sawyer in Local Regional News

CPD unbecoming conduct policy

1. Employees shall conduct themselves at all times — both on and off duty — in such a manner as to reflect favorably on the Department. Conduct unbecoming a public employee includes conduct that is unlawful and/or brings the Department into disrepute, reflects discredit upon the employee as a member of the Department, or impairs the operation or efficiency of the Department or officer.

2. The above conduct includes representations made on and in all forms of social media. Social media includes, but is not limited to, Facebook, Twitter, MySpace and other public or private technologies that may emerge. This would also apply to both public and restricted profiles. Department personnel should assume that their speech and related activity on social media sites will reflect upon their office and this department.

Source: Chattanooga Police Department Policy Manual, ADM-16

Social media policies elsewhere

Social media policy highlights

Nashville

The two-and-a-half page Nashville policy tells police to identify themselves as MNPD officers when referencing the police department in a comment. It also asks officers to state that their comments do not necessarily reflect the views or opinions of the Metro police department.

Officers are asked not to engage with anyone posting anything inaccurate, negative or accusatory about the department.

Knoxville

If any of the Knoxville Police Department officers find themselves out of the technology loop, the KPD social media policy provides a list of word definitions, including those whose common meanings have evolved, such as profile, page and post.

The KPD policy is one of three policies that specifically order officers not to post anything sexual, violent, racial or ethnically derogatory.

Officers are required to provide the department access to their social networking sites as part of a background investigation.

Memphis

The one-page Memphis Police Department social media policy covers not only social media posts but any information electronically transmitted. For example, one officer was punished for forwarding a video called “F—-k MPD” he’d received in a text message to the media.

Clarksville

The Clarksville Police Department is another of the three departments with policies containing a clause that specifically tackles sexual, violent, racial or ethnically derogatory posts.

Murfreesboro

Thorough and specific, the 15-page Murfreesboro Police Department social media policy contains an entire page outlining what social media content is inappropriate. For example, not only does the policy address race, ethnicity, sexual content and violence, it also addresses color, age, creed, religion, marital status, receipt of public assistance, physical or mental disability or “any other legally protected classification or category.”

It also explains what city employees can use social media for: city communication and promotion.

 

For police officers, an internet rant could cost three days' pay. Forwarding a music video critical of the department to a television station could cost 10.

Law enforcement do not enjoy the same level of free speech protection civilians make use of every day on social media and can be punished for expressing themselves on politically charged topics such as racism and immigration.

And with racial tensions high across a nation in the midst of a contentious and polarizing presidential campaign, where videos of fatal officer-involved shootings of unarmed black people appear in news feeds, officers are under more public scrutiny than ever. Three recent cases in Tennessee showcase the pitfalls officers face on social media.

"The public is watching the police, and they can't be perceived as coddling or excusing hate speech by their employees," said Eugene O'Donnell, a former New York Police officer and prosecutor and now a professor at the John Jay College of Criminal Justice in New York. "The landscape is littered with people who've lost their job over social media."

Last month, one Metro Nashville police officer was temporarily decommissioned after posting a comment on Facebook referencing the fatal police-involved shooting in Falcon Heights, Minn. Another was decommissioned for changing his profile photo to an iconic 1960s Black Panthers image. In Memphis, two officers were suspended over posts on Snapchat.

Seven Metro Nashville officers were disciplined for posts they made on social media over the past five years, although none were fired for the conduct, according to the department's disciplinary records. Two of those officers had multiple incidents. Decommissioning is a nonpunitive, administrative action that will result in the officer being either reinstated or not, depending on the investigation's findings.

The most severe punishment was the 23-day suspension without pay of officer Dale Tomlin in 2015 over comments made on Facebook that some considered racist or homophobic.

Speech about racism is almost always a matter of public concern — protected speech as far as the U.S. Constitution is concerned — except when such speech interferes with a law enforcement organization's ability to operate, said David Hudson, a First Amendment Center research attorney at Vanderbilt University's John Seigenthaler Center.

"When your job is to handle people of various races, that's a problem," Hudson said.

Hudson said he's seen a recent uptick in the number of cases in which officers have been disciplined for social media activity.

He said that although government employees still maintain some First Amendment protections, police departments are given wide leeway to discipline officers who "somehow interfere with the operation of the agency."

Even creating a GoFundMe page for victims of domestic violence can be against the rules, as Memphis police officer and former "Police Women of Memphis" star Virginia Awkward found out in October 2014.

According to documents obtained by The Tennessean, Awkward and her then-girlfriend set up the GoFundMe account after Awkward responded to a domestic assault call, returning the next day while off-duty to take the victims — a mother and her infant child — shopping because they lacked basic essentials.

The officer and civilian raised more than $1,000 for the two after Awkward identified herself as an officer with the Memphis Police Department and solicited funds and goods on Facebook and GoFundMe. But that was done without the approval of the director of police, according to Memphis police records.

Awkward was punished with two written reprimands and one day's suspension without pay, costing her about $150.

A review of the social media policies for the police departments in Nashville, Memphis, Knoxville, Chattanooga, Clarksville and Murfreesboro shows the departments prohibit their officers from posting anything that could be seen as speaking on behalf of their employers without permission. And from the longest — 15 pages in Murfreesboro — to the shortest — six sentences in Chattanooga — the policies make clear that the reputation of the department is what's at stake.

The Nashville policy offers a model disclaimer for officers to use when posting anything on the internet that explains they are posting as a private citizen and not as a police department employee.

The Knoxville policy asks officers to refrain from posting any police-related materials online, including pictures of their badges, uniforms and weapons, but the more stringent policy asks employees not to identify themselves as officers at all. The department also asks applicants to fill out an affidavit listing all social media participation — in addition to providing "the department with access to their site as part of any background investigation."

In Memphis, if an officer's social media content "could be perceived as having an adverse effect upon agency morale, discipline, operation of the agency or safety of department personnel," it becomes a punishable offense.

Over half of the 16 Memphis officers disciplined for their social media activity in the past five years expressed little to no understanding of the social media policy, first implemented there in 2010, according to Memphis police documents.

That number does not include the two Memphis police officers who were suspended and remain under investigation for posting the Snapchat image of what appeared to be a white person pointing a gun at a cartoon image of a black child running through a home.

"The thrust of it is, if you wrap yourself in police business online, you better be careful what you say because most agencies are going to protect their standing in the community," O'Donnell said.

But O'Donnell said the social media policies and public scrutiny can have damaging effects on police that go beyond protecting a department's reputation in the community.

He said the policies can be used to silent dissent within police departments, chill free speech and further isolate officers who already feel treated more like a number than people.

For example, Nashville officer Geoffrey Odom was suspended in 2015 for three days for posting comments on a Fox 17 story about police personnel practices.

And Memphis police officer Meekos Evans was suspended for 10 days for forwarding a music video by a local rapper called "F—-k MPD" to media in 2013 to raise awareness of the video's negative portrayal by others of the Memphis Police Department, according to the statement of charges against the officer.

Hudson said the courts usually side with the employer in these type of cases.

O'Donnell said that can have down sides.

"I resent the fact that cops have no right to speak," O'Donnell said. "They come against a lot of really difficult things, but we're saying to them, 'You can't talk about that.' "

O'Donnell suggested officers should have more freedom to discuss issues online, rather than leave them bottled up and unchecked.

Chattanooga police officer William Puckett, a 17-year veteran, echoed similar frustrations about comments he made on Facebook in 2014, according to a recording of an interview he gave with the department.

"That policy supersedes any individual rights that I have as a person; I understand that," Puckett said.

Puckett said he responded to a post by Chris Brooks, a man he shares mutual law enforcement friends with, when Brooks shared a post accusing white people of fighting to deny racism and challenging them to "fight for visions of a better world."

"He called me a racist, and I'm not," Puckett said in the recording. "As a white man that's married to an African-American woman, I took even more offense to that.

"It's easy to throw rocks when you don't have the b—ls to risk your life for someone you've never met," Puckett responded. He later used some profanity in continuing to argue his point.

Brooks filed a complaint with the Chattanooga Police Department, according to the records, and Puckett received a letter of reprimand.

"Regardless of if you were at home or where you were when you posted that, you're still a Chattanooga police officer," the internal affairs interviewer said. "You know that we're still held to a higher standard, on or off duty."

Hudson summed up the state of the First Amendment for police officers and other public employees by recalling a famous quote by Massachusetts Justice Oliver Holmes Jr. in 1892.

"The (officer) may have a constitutional right to talk politics, but he has no constitutional right to be a policeman."

Contact Ariana Sawyer at 615-815-5933 and on Twitter @a_maia_sawyer.