Social Networking Policy Violates Free Speech Rights

Herbert Liverman and Vance Richards were veteran police officers for the City of Petersburg, Virginia. In April 2013, the Police Chief issued a general order revising the Department’s social networking policy. The preface to the revised policy prohibited in sweeping terms the dissemination of any information “that would tend to discredit or reflect unfavorably upon the Department or any other City of Petersburg Department or its employees.”

The central provision of the policy explicitly banned “negative comments,” which were defined as “comments on the internal operations of the Bureau, or specific conduct of supervisors or peers that impacts the public’s perception of the Department.” Another provision allowed officers to comment on issues of public concern but only “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.” Finally, the policy “strongly discouraged employees from posting information regarding off-duty activities” and provided that violations will be forwarded to the Chief of Police for “appropriate disciplinary action.”

While off duty on June 17, 2013, Liverman posted the following message to his Facebook page:

“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 five 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 today’s world of instant gratification and political correctness we have rookies in specialty units, working as field training officers 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.”

More than 30 people “liked” or commented on this post. Richards, also off duty at the time, commented as follows:

“Well said bro, I agree 110%…Not to mention you are seeing more and more younger Officers being promoted in a Supervisor 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.”

Later that day, Liverman responded to Richards with a comment of his own:

“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.”

Richards then 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.”

The Chief issued an oral reprimand to both officers and placed them on six months’ probation. Several weeks later, the Chief altered the qualifications for promotion to prohibit officers on probation from participating in the promotion process. Accordingly, when Liverman and Richards applied for open sergeant positions, the Department notified them that they were ineligible to sit for the promotional exam.

The officers filed a federal court lawsuit, and the matter wound up in the federal Fourth Circuit Court of Appeals. The Court found that the Department’s social networking policy violated the free speech rights of the officers.

The Court concluded that “the interests of present and future employees and their potential audiences in such speech is manifestly significant. We do not, of course, discount the capacity of social media to amplify expressions of rancor and vitriol, with all its potential disruption of workplace relationships that Connick condemned. But 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. After all, government employees are often in the best position to know what ails the agencies for which they work. But this policy will cut short all of that. To repeat, it squashes speech on matters of public import at the very outset.

“The Chief’s primary contention is that divisive social media use undermines the Department’s interests in maintaining camaraderie among patrol officers and building community trust. These are, to be sure, legitimate interests. Here, however, the Department fails to satisfy its burden of demonstrating actual disruption to its mission. Apart from generalized allegations of budding divisiveness and claims that some patrol officers sought shift transfers, the Chief presented no evidence of any material disruption arising from plaintiffs’ – or any other officer’s – comments on social media. We do not deny that officers’ social media use might present some potential for division within the ranks, particularly given the broad audience on Facebook. But the speculative ills targeted by the social networking policy are not sufficient to justify such sweeping restrictions on officers’ freedom to debate matters of public concern.

“The form and context of the comments indicate that plaintiffs did in fact speak on an issue of public concern. Regarding the form of speech, we find it significant that the officers chose Facebook as the forum for their communication. As our colleague Judge Traxler has recognized, Facebook is a dynamic medium through which users can interact and share news stories or opinions with members of their community. Similar to writing a letter to a local newspaper, publicly posting on social media suggests an intent to communicate to the public or to advance a political or social point of view beyond the employment context. Further, the officers’ Facebook comments were prompted by other ‘posts referencing rookie cops becoming instructors.’

“Serious concerns regarding officer training and supervision are weighty matters that must be offset by an equally substantial workplace disruption. The Chief failed to establish a reasonable apprehension that plaintiffs’ social media comments would meaningfully impair the efficiency of the workplace.

“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.”

Liverman v. City of Petersburg, 2016 WL 7240179 (4th Cir. 2016).