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Policing Off-Duty Social Media Activity

Social media has emerged as a critical platform for local governments and public officials, and has grown into an expectation for governmental communication. Governments using social media have some restrictions that other entities do not face, including the First Amendment’s guarantee of freedom of speech.

Even beyond official messages, municipal leaders have to ask — what kind of regulation is appropriate when employees use personal social media accounts to post thoughts about their families, politics and their jobs?

There have been court cases involving municipalities disciplining employees for off-duty social media activity. The cases have held that employees do not sacrifice their First Amendment rights by accepting government jobs — but at the same time, government employers can still impose consequences for off-duty behavior.

The United States Supreme Court has aimed to balance these competing concerns with a two-part analysis:

  1. Does the employee’s speech relate to a “matter of public concern?” If not, the employer can regulate the employee’s speech, the same as if they were a private employer.
  2. If the speech does relate to a public concern, then the court will work to balance the government’s interests as an employer with an employee’s right to expression and the public’s right to hear that expression.

The case Liverman v. City of Petersburg, decided in 2016 by the U.S. Court of Appeals for the Fourth Circuit, can illustrate the issues involved.

The case began in 2013, when an off-duty police officer posted a message on his personal Facebook page suggesting that his police department promoted inexperienced officers to the position of instructor. 

Another officer from the same department, who was also off duty, responded to say, “How can ANYONE look up, or give respect to a SGT in Patrol with ONLY 1½ years experience in the street? Or less as a matter of fact. It’s a Law Suit waiting to happen.”

The police department’s social media policy prohibited using social media to make negative comments on the “internal operations” of the department. The policy also disallowed using social media to criticize “specific conduct of supervisors or peers that impacts the public’s perception of the department.” The police chief, using this policy, disciplined the officers.  

The officers then sued the department, claiming that the policy and its application violated their First Amendment rights. The court, using the balancing test, found that the speech related to a public concern, and so the disciplinary action was unconstitutional. 

“While we are sensitive to the Department’s need for discipline through the chain of command,” the court wrote, “the policy here and the disciplinary actions … would, if upheld, lead to an utter lack of transparency in law enforcement that the First Amendment cannot countenance.”

The Constitution’s guarantee of freedom of speech means that for governments, employee speech will always be more complicated than it is for other employers. Determining whether a specific discussion involves a matter of public concern can be difficult. Before drafting a social media policy that covers after-hours employee behavior, and before disciplining an employee, municipalities should consult with their legal counsel. 

The October 2020 issue of Uptown included an article, “Balancing Social Media and the First Amendment,” which addressed the issues of moderating social media user comments on a government account, as well as First Amendment considerations for the personal accounts of elected officials.