Fourth Circuit invalidates police department’s social-networking policy as an impermissible prior restraint on speech
On December 15, in Liverman v. City of Petersburg, the U.S. Court of Appeals for the Fourth Circuit issued an interesting opinion dealing with public-employee speech in the digital age. In a unanimous opinion written by Judge Wilkinson (and joined by Judge Traxler and USDJ Hendricks), the Court sided resoundingly with two Petersburg (Virginia) police officers disciplined for having violated the social-networking policy of their Department by criticizing it in posted Facebook comments.
In April 2013, the Chief of Police of the City of Petersburg, John Dixon, issued a general order revising the Department’s social-networking policy. The preface to the revised policy broadly prohibited the dissemination of any information “that would tend to discredit or reflect unfavorably upon the [Police Department] or any other City of Petersburg Department or its employees.” Slip Op. at 2-3. A specific provision of the policy, which the Court referred to as the “Negative Comments Provision,” stated:
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 by the First Amendment free speech clause, in accordance with established case law.
Id. at 3. Another provision, which the Court called the “Public Concern Provision,” stated:
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 must be judged on a case-by-case basis.
Id.
While off duty on June 17, 2013, two veteran Petersburg police officers – Herbert Liverman and Vance Richards – engaged in a public dialogue on Facebook. Officer Liverman began by posting:
Sitting here reading posts referencing rookie cops becoming instructors. Give me a freaking break, over 15 years of data collected by the FBI in reference to assaults on officers and officer deaths shows that on average it takes at least 5 years for an officer to acquire the necessary skill set to know the job and perhaps even longer to acquire the knowledge to teach other officers. But in todays world of instant gratification and political correctness we have rookies in specialty units, working as field training officer’s and even as instructors. Becoming a master of your trade is essential, not only does your life depend on it but more importantly the lives of others. Leadership is first learning, knowing and then doing.
Id. at 3-4. More than 30 people “liked” or commented on Liverman’s post. One of the those was Officer Richards, who wrote:
Well said bro, I agree 110%… Not to mention you are seeing more and more younger Officers being promoted in a Supervisor/ or roll. It’s disgusting and makes me sick to my stomach DAILY. LEO Supervisors should be promoted by experience… And what comes with experience are “experiences” that “they” can pass around to the Rookies and younger less experienced Officers. Perfect example, and you know who I’m talking about….. How can ANYONE look up, or give respect to a SGT in Patrol with ONLY 1 1/2yrs experience in the street? Or less as a matter of fact. It’s a Law Suit waiting to happen. And you know who will be responsible for that Law Suit? A Police Vet, who knew tried telling and warn the admin for promoting the young Rookie who was too inexperienced for that roll to begin with. Im with ya bro….smh[1]
Id. at 4. The two officers then traded a couple of more comments that same day. First, Officer Livermore replied to Officers Richards’ comment:
There used to be a time when you had to earn a promotion or a spot in a specialty unit…but now it seems as though anything goes and beyond officer safety and questions of liability, these positions have been “devalued”… and when something has no value, well it is worthless.
Id. And, finally Officer Richards replied:
Your right….. The next 4yrs can’t get here fast enough… From what I’ve been seeing I don’t think I can last though. You know the old “but true” saying is…. Your Agency is only as good as it’s Leader(s)… It’s hard to “lead by example” when there isn’t one….smh
Id. at 4-5.
Two sergeants in the Department, Officers Liverman’s and Richards’ supervisors, found out about the Facebook exchanges and notified Chief Dixon. Chief Dixon concluded that the officers’ statements violated the Department’s social-networking policy and instructed the sergeants to discipline the officers. Both officers received an oral reprimand and six months’ probation.
The officers subsequently filed suit in federal district court pursuant to 42 U.S.C. § 1983, seeking damages and other relief against Chief Dixon and the City for various violations of the First Amendment. Specifically, the officers alleged that the Department’s social-networking policy infringed their free-speech rights, and they also challenged the disciplinary actions taken pursuant to the policy.[2] The district court agreed with the plaintiffs that the social-networking policy, on its face, violated the First Amendment. However, the district court found that Chief Dixon was entitled to qualified immunity because the policy fell within a “gray zone.”
The Fourth Circuit affirmed in part and reversed in part. The Court agreed with the district court that the Police Department’s social-networking policy was unconstitutionally overbroad. But the Court went further, reversing the district court’s rulings regarding qualified immunity.
The Court first explained that, “although regulations on social media use may appear to present novel issues,” the proper framework for analyzing the Police Department’s restrictions on social-networking activity is the “traditional analysis” contained in the Supreme Court cases of Connick v. Myers, 461 U.S. 138, 149 (1983),[3] Pickering v. Board of Education, 391 U.S. 563, 568 (1968), and United States v. National Treasury Employees Union, 513 U.S. 454 (1995). That analysis requires that, if the speech at issue is of public concern, a court must balance the interests of a public employee, as a citizen, in commenting upon matters of public concern against the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.
The Court then addressed the officers’ facial challenge to the Police Department’s social-networking policy. The Court first concluded that the policy regulated officers’ rights to speak on matters of public concern, given that the Negative Comments “restraint is a virtual blanket prohibition on all speech critical of the government employer.” Slip Op. at 10. The Court then proceeded to weigh the competing interests at issue.
First, the Court noted “the astonishing breadth of the social networking policy’s language,” given that it prohibited “[n]egative comments on the internal operations of the Bureau” and comments on “specific conduct of supervisors or peers” — restrictions that, the Court reasoned, would cover “just about anything.” Id. at 11. The Court found that the interest of present and future employees and their potential audiences in such speech “is manifestly significant.” Id. While the Court did not “discount the capacity of social media to amplify expressions of rancor and vitriol, with all its potential disruption of workplace relationships,” id., the Court found more significant the fact that
social networking sites like Facebook have also emerged as a hub for sharing information and opinions with one’s larger community. And the speech prohibited by the policy might affect the public interest in any number of ways, including whether the Department is enforcing the law in an effective and diligent manner, or whether it is doing so in a way that is just and evenhanded to all concerned. The Department’s law enforcement policies could well become a matter of constructive public debate and dialogue between law enforcement officers and those whose safety they are sworn to protect.
Id. at 11-12.
On the other side of the balancing analysis, the Court found that Chief Dixon had not established that the Department would be harmed by allowing such expressive activity on social media. The Chief’s primary argument was that “divisive social media use undermines the Department’s interests in maintaining camaraderie among patrol officers and building community trust.” Id. at 12. While the Court acknowledged the importance of these interests, it found that, in this case, Chief Dixon had not met his burden to show actual disruption to the Department’s mission.
Rather, the Chief had only offered “generalized allegations of budding ‘divisiveness’ and claim[ed] that some ‘patrol officers sought [shift] transfers.’” Id. The “speculative ills” put forward by the Police Department were “not sufficient to justify such sweeping restrictions on officers’ freedom to debate matters of public concern.” Id. Nor was the Court satisfied that the narrower Public Concern Provision allowed the social-networking policy to pass muster under the First Amendment:
[T]he milder language in a single provision does not salvage the unacceptable overbreadth of the social networking policy taken as a whole. Indeed, the Public Concern Provision does not purport to nullify or otherwise supersede the blanket censorship endorsed by the Negative Comments Provision. If the Department wishes to pursue a narrower social media policy, then it can craft a regulation that does not have the chilling effects on speech that the Supreme Court deplored. We cannot, however, allow the current policy to survive as a management and disciplinary mechanism.
Id. at 14. Thus, the Court affirmed that portion of the district court’s opinion finding that the social-networking policy was facially overbroad.
The Court also sided with the officers on their challenges to the disciplinary actions taken against them because of violations of the social-networking policy. The Court held that the officers’ Facebook posts, in fact, addressed matters of public concern. On this point, the Court found significant “that the officers chose Facebook as the forum for their communication.” Id. at 15. Because “Facebook is a dynamic medium through which users can interact and share news stories or opinions with members of their community,” the officers’ public posts on Facebook suggested “an intent to communicate to the public or to advance a political or social point of view beyond the employment context.” Id. at 15-16. Thus, the Court concluded, Officers Liverman and Richards “were not simply airing personal grievances” – which would have been unprotected speech – “but rather were joining an ongoing public debate about the propriety of elevating inexperienced police officers to supervisory roles.” Id. at 16.
The Court then conducted its balancing analysis with respect to the as-applied challenges, noting that the officers’ serious concerns regarding officer training and supervision are “weighty matters” that “must be offset by an equally substantial workplace disruption” for the Police Department’s disciplinary actions to withstand First Amendment challenge. Id. at 18. Again, Chief Dixon failed to establish “a reasonable apprehension that plaintiffs’ social media comments would meaningfully impair the efficiency of the workplace.” Id. Finally, the Court noted that the Defendants were not seriously disputing that the officers’ Facebook posts were a substantial factor in the decision to discipline them.
Having found that adoption of the social-networking policy and the disciplinary actions taken against both officers violated the First Amendment, the Court then reviewed the district judge’s decision according qualified immunity to Chief Dixon. Once again, the Court ruled in the officers’ favor, holding that qualified immunity did not shield the Chief from liability for adopting and enforcing the social-networking policy. First, the Court explained that the “right against such a sweeping prior restraint on speech was clearly established and then some.” Id.at 20.
Next, the Court rejected Chief Dixon’s argument that the disciplinary actions taken pursuant to the policy were reasonable in light of the supposed difficulty in distinguishing public and private speech. In the Court’s view, “[g]iven the patent unconstitutionality of the social networking policy, … efforts to enforce the policy are similarly suspect.” Id. Thus, while the Court acknowledged “the need for order and discipline in the ranks,” it refused to “countenance an arm of government with such enormous powers being removed to this extent from public scrutiny.” Id. at 21.
Judge Wilkinson seemed to suggest that, if a police chief did a better job creating a sensible policy that was not designed to stifle all critical speech by his or her officers, the Court would be more forgiving when conducting a qualified-immunity analysis: “This is not an all-or-nothing matter; there is a balance to be struck.” Id. at 21. But, here, the Chief’s policy, and the disciplinary actions taken to enforce it, “lean too far to one side.” Id. Thus, the Court held that Chief Dixon was not entitled to qualified immunity.[4]
As he often does, Judge Wilkinson ended his opinion with a memorable conclusion, seemingly placing the Court’s decision in the context of the unrest that has arisen around the country in response to police shootings of African Americans:
Running a police department is hard work. Its mission requires capable top-down leadership and a cohesion and esprit on the part of the officers under the chief’s command. And yet the difficulty of the task and the need for appropriate disciplinary measures to perform it still does not allow police departments to wall themselves off from public scrutiny and debate. That is what happened here. The sensitivity of all the well-known issues that surround every police department make such lack of transparency an unhealthy state of affairs. The advent of social media does not provide cover for the airing of purely personal grievances, but neither can it provide a pretext for shutting off meaningful discussion of larger public issues in this new public sphere.
Judge Wilkinson is arguably the judge on the Fourth Circuit most likely to side with the police in any given case. The fact that it was Judge Wilkinson who delivered this stern rebuke to the Police Department in this case makes the Court’s decision even more interesting and significant.
[1] Judge Wilkinson included a footnote explaining that “‘Smh’ is an acronym for ‘shaking my head.’” LOL
[2] The officers also alleged that, because they asserted their First Amendment rights, the Department retaliated by investigating them for other misconduct. The district court granted summary judgment to the Defendants on the retaliation claims, and the Fourth Circuit affirmed that part of the district court’s opinion.
[3] The Connick in Connick v. Myers is Harry Connick, Sr., the father of singer Harry Connick, Jr. Connick, Sr., was the district attorney for Orleans Parish (New Orleans) for 30 years.
[4] The Court remanded for a determination of whether the City was liable for Chief Dixon’s unconstitutional actions. The district court had decided that issue using an incorrect standard.
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