City of Petersburg, Virginia Police Social Media Policy Unconstitutional

Liverman v. City of Petersburg. Late last year (I know; I’m way behind), the Fourth Circuit struck down the unconstitutional social media policy of the City of Petersburg Bureau of Police.

The policy prohibited sharing information that would discredit or reflect poorly on the department or any other city department or employee. The policy said:

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.

But, it carved out matters of public concern:

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.

Two police officers challenged the discipline they received for violating policy. One of the officers made a post to Facebook deriding the idea of rookie officers holding instruction posts. The other commented on the post agreeing, and adding that younger officers also should not be in supervisory roles. He specifically referred to a particular person holding a particular role, but did not name the person. The two exchanged two more messages. Most of the Likes and Comments in the thread were from current or former officers at the department.

Each officer received a reprimand and six months of probation. A few weeks later, the Chief altered the promotion protocol to prohibit those on probation from receiving promotions. The two officers were notified that they were ineligible to sit for a promotion exam.

The two sued alleging that the policy violated the First Amendment (among other claims related to subsequent investigations and discharge).

Public employees do not give up their First Amendment rights by being public employees, but they do accept certain limitations. If speech is personal, it is protected. If it is a matter of public concern, courts balance the interests of the employee as a citizen and the interest of the state as an employer promoting efficiency of public services.

The Fourth Circuit decided that the department’s policy was overbroad. Indeed, the opinion refers to the “astonishing breadth” of the policy and concludes that the policy clearly imposes a burden on expresses activity.

The department argued that social media could be divisive, and lead to a breakdown in comradery among officers. The court found this compelling, but found no evidence of any actual material disruption arising from any social media post. The Circuit Court was also unconvinced that the savings clause was sufficient to correct the overbreadth of the policy.

“This is not an all or-nothing matter; there is a balance to be struck.” The Fourth Circuit concluded that this specific policy, if enforced, would lead to a lack of transparency in law enforcement that the First Amendment doesn’t support.

We hold that the Department’s social networking policy was unconstitutional and that the disciplinary measures taken against plaintiffs pursuant to that policy were likewise impermissible. The patent overbreadth of the policy negates Chief Dixon’s qualified immunity defense.