SOCIAL MEDIA: LEGAL CHALLENGES AND PITFALLS

SOCIAL MEDIA: LEGAL CHALLENGES AND PITFALLS International Association of Chiefs of Police Legal Officers Section September 29, 2012

SOCIAL MEDIA – SPECIAL CONSIDERATIONS FOR LAW ENFORCEMENT • SOCIAL MEDIA – HERE TO STAY • ISSUE FOR THOSE OF US IN LAW ENFORCEMENT: HOW DO WE RESPECT EMPLOYEES’ CONSTITUTIONAL RIGHTS WHILE ENSURING THAT THEIR USE OF SOCIAL MEDIA DOES NOT ADVERSELY AFFECT DEPARTMENT OPERATIONS?

“This is something that all police chiefs around the country, if you are not dealing with it, you better deal with it.” (Mark A. Marshall, Chief of Police in Smithfield, VA. – President of the IACP.) SOCIAL MEDIA – SPECIAL CONSIDERATIONS FOR LAW ENFORCEMENT

SOCIAL MEDIA – SPECIAL CONSIDERATIONS FOR LAW ENFORCEMENT • GENERATIONAL ISSUES – EVOLVING STANDARDS OF WHAT CONSTITUTES PRIVACY • EASE OF POSTING THOUGHTS/OPINIONS ON SOCIAL MEDIA – THERE IS OFTEN LITTLE THOUGHT OF POTENTIAL IMPACT OF THE “SPEECH” • MISTAKEN PERCEPTION THAT POSTING IS “PRIVATE” SPEECH – INFORMATION IS EASILY SHARED; PLACED IN THE PUBLIC DOMAIN. • RECENT EVENTS – POLITICIANS, CELEBRITIES, ETC.

SOCIAL MEDIA – SPECIAL CONSIDERATIONS FOR LAW ENFORCEMENT • Ray Shultz of the Albuquerque Police Department was quoted in a recent news story as saying “You need to get a handle on this very quickly, because this has the potential to damage the reputation of the organization and also adversely affect you in the courtroom.” Chief Shultz added that some social media sites are “like the bathroom wall of 20 years ago, except now the entire world can see it.”

EXAMPLES OF WAYS SOCIAL MEDIA CAN DETRIMENTALLY AFFECT A POLICE DEPARTMENT • I. Revelation of sensitive/restricted departmental information/communications. • II. Sexually explicit communications (Both on and off-duty). • III. Defamatory material. • IV. Derogatory communications targeted at protected classes of persons. • V. Communications adversely impacting judicial proceedings. (Brady/Giglio issues)

EXAMPLES OF CASES WHERE OFFICERS’ USE OF SOCIAL MEDIA ADVERSELY IMPACTED JUDICIAL PROCEEDINGS OR OTHERWISE CAST THE DEPARTMENT IN A NEGATIVE LIGHT(Or should we just call them “Facebook Horror Stories?”)

PEOPLE V. WATERS, (Kings Co. NY Sup. Ct. 2009) • Defendant was charged with felony gun possession. • Defense theory that arresting officer planted the gun. • Police officer had a MySpace account. • Near time of arrest of Defendant: Mood description was listed as “devious.” • Status: “Watching Training Day” to brush up on proper police procedure.

People v. Waters, cont. • Officer had also posted comments online regarding video arrest clips: • ““If [officer] wanted to tune him up some, he should have delayed cuffing him;” “if you were going to hit a cuffed suspect, at least get your money’s worth.” • Defendant, on parole for burglary, was acquitted of the most serious charges. • Officer’s thoughts: “I’m not going to say it was the best of things to do in retrospect.” “….stupidity on the Internet is there for everyone to see for all times in perpetuity.”

People v. Waters, cont. • When asked about the “Not Guilty” verdict, the officer stated “I feel it’s partially my fault.” “It paints a picture of a person who could be overly aggressive. You put that together, it’s reasonable doubt in anyone’s mind.”

HOW WOULD THIS OFFICER’S POSTING BE PERCEIVED IF HE WAS ACCUSED OF USING EXCESSIVE FORCE?

CROMER V. LEXINGTON-FAYETTE URBAN CO. GOVT. (2009) • Lexington, KY, police officer arrested singer John Michael Montgomery for DUI. City officials learned that Cromer had identified himself as a police officer on his MySpace page, and had posted words and/or images that reflected discredit to him, the PD, and impaired the operation and efficiency of himself and the PD. Such postings included profane language, comments and images regarding homosexuals and the disabled, inappropriate sexual comments, and an altered photograph depicting him with Montgomery. Both the trial ct. and the Ct. of Appeals upheld his termination on grounds of misconduct, inefficiency, and insubordination.

ALBUQUERQUE POLICE SHOOTING - 2011 • Officer shot and killed a subject following a traffic stop. • Had listed his job description on his Facebook page as “human waste disposal.” • Attorney sought to obtain access to fifty-seven officers’ Facebook pages in order to see if they had discussed the shooting. • Chief of AlbuquerquePD said he was “disgusted” by the comment and that it will be part of an internal affairs investigation into the shooting.

ALBUQUERQUE POLICE SHOOTING, cont. • The officer involved later said that his Facebook posting was “extremely inappropriate and a lapse in judgment on my part.” • Albuquerque PD subsequently developed a Social Media policy for its officers.

NYPD Officers Post Comments Regarding the Annual West Indian Parade

West Indian Parade Controversy, cont. • Officers maligned paradegoers on a Facebook page. Some posts characterized the participants as “animals” and “savages.” The Facebook page on which the comments were posted was believed to be accessible to any user of the site, and consisted of nearly 70 printed pages of material. • Defense attorneys used the postings in an effort to discredit the courtroom testimony of an officer who had “liked” the Facebook page. The officer in question had arrested an individual in the hours before the parade started. Many of the postings were referenced during the trial. The defendant was subsequently acquitted. • 17 offficers have since been disciplined by the NYPD for their part in posting material to the site.

And the Examples Continue: • Peoria, AZ: An officer was disciplined after posting this photograph on his Facebook page:

Facebook Posting of Obama Shirt Riddled With Bullet Holes • The Secret Service and the officer’s department launched inquiries after the photo was posted. • The officer was demoted and suspended by the department due to his violation of its social media policy and because he discredited the department. • The discipline was upheld following the officer’s appeal of the demotion.

FREE SPEECH AND THE PUBLIC EMPLOYEE • AS LAW ENFORCEMENT ADMINISTRATORS, WHAT CAN YOU DO TO EITHER PREVENT SUCH SITUATIONS FROM OCCURING OR PUNISHING THOSE WHOSE ACTIONS VIOLATE DEPARTMENTAL POLICY? • WHAT ARE YOUR RIGHTS TO RESTRICT EMPLOYEES’ “SPEECH?” • WILL THE EMPLOYEE BE ABLE TO ARGUE THAT WHAT THEY SAY AND WRITE “OFF-DUTY” IS OF NO CONCERN TO THE DEPARTMENT?

FREE SPEECH AND THE PUBLIC EMPLOYEE, cont. • WHERE DO WE START? • AN ANALYSIS OF THE SIGNIFICANT FIRST AMENDMENT CASES THAT HAVE CONSIDERED THE RESTRICTIONS THAT CAN BE PLACED ON PUBLIC EMPLOYEES’ SPEECH. • THE GOOD NEWS: ALTHOUGH THE USE OF SOCIAL MEDIA IS RELATIVELY NEW, EXISTING LAW PROVIDES ADEQUATE GUIDANCE FOR PUBLIC ENTITES CONFRONTING THESE ISSUES. LAW ENFORCEMENT AGENCIES HAVE DEALT WITH EMPLOYEE-RELATED “SPEECH” ISSUE FOR MANY YEARS.

FREE SPEECH AND THE PUBLIC EMPLOYEE, cont. • First Amendment to the Constitution: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of people peaceably to assemble, and to petition the government for a redress of grievance.”

FREE SPEECH AND THE PUBLIC EMPLOYEE, cont. • Challenge for Law Enforcement Agencies: How do we respect employees’ First Amendment Rights while ensuring that the agency’s interests are adequately protected. • First Amendment rights are cherished, but are certainly not without reasonable limitations.

FREE SPEECH AND THE PUBLIC EMPLOYEE, cont. • A principal inquiry for courts when reviewing public employee free speech cases is whether the employee made the statements in their official capacity or as a private citizen. • The issue is sometimes more difficult when dealing with law enforcement officers they are often considered to be “on duty” at all times.

FREE SPEECH AND THE PUBLIC EMPLOYEE, cont. • Public employees (esp. law enforcement) vs. private citizens. • As the Supreme Court noted in one significant First Amendment case, “when a citizen enters government service, the citizen by necessity must accept certain limitations on his/her freedom.” (Garcetti). • It is this principle that underscores much of the case law in this area.

FREE SPEECH AND THE PUBLIC EMPLOYEE, cont • As government employees, we are held to a higher standard than private citizens. • IACP Code of Ethics was adopted in the late 1950s. The second paragraph of that Code, which has become a standard of the profession, states “I will maintain an unsullied personal life as an example to all.”

FREE SPEECH AND THE PUBLIC EMPLOYEE, cont • Essential analysis when analyzing the First Amendment Rights of public employees – How do we go about it? • “SPEECH”: Defined broadly – oral or written communications and other forms of conduct. • Protection of certain forms of public employees’ speech was recognized by Supreme Court in Pickering v. Board of Education (1968)

FREE SPEECH AND THE PUBLIC EMPLOYEE, cont • In Pickering, Court established a balancing test, weighing the employee’s interest in commenting on matters of public concern against the employer’s interest in promoting efficiency of the public services it renders. • We must always begin the analysis of the speech in question by determining whether the employee was speaking as a “private citizen” on a matter of “public concern.” • If so, then we balance the interests (employee’s and employer’s) involved.

FREE SPEECH AND THE PUBLIC EMPLOYEE, cont • We also need to determine whether the employee’s speech was a motivating factor in the adverse employment action – Did the employer have a reason for taking the action even in the absence of the protected conduct?

“PRIVATE CITIZEN” OR PUBLIC EMPLOYEE? • Purely job-related speech: In Garcetti, the Supreme Ct. held that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes and the Constitution does not insulate their communications from employer discipline. • Deputy DA made allegations regarding an affidavit submitted to obtain a SW. • Later claimed that the DA had retaliated against him for drafting a memo critical of the warrant.

Garcetti, cont. • Deputy DA filed suit claiming that his rights under the First and Fourteenth Amendments had been violated. • Court rejected claim, by stating that government employers must have sufficient discretion to manage their operations. • “Our precedents do not support the existence of a constitutional cause of action behind every statement a public employee makes in the course of doing his or her job.”

Garcetti, cont. • Impact of Garcetti: Government employers have the ability to retain control over speech that “owes its existence to a public employee’s professional responsibilities.” • Sup. Ct. acknowledged that exposing governmental inefficiency and misconduct is of considerable significance. Although the First Amendment may not be the avenue to seek protection for statements made by employees, there are protections in the form of “whistleblower statutes” or labor code provisions.

POST-Garcetti cases of interest to law enforcement • Foley v. Town of Randolph (1st Cir. 2010): Fire chief spoke at the scene of a fire in uniform. Commented on how budget cutbacks had adversely impacted department’s response. Discipline was upheld as he was speaking as a public employee and not a private citizen. • Andrew v. Clark (4th Cir. 2009): Officer was terminated based upon a memo he wrote re: a police shooting. Memo was shared with a reporter. Officer claimed he had a First Amendment right to speak about a matter of public concern. • Because Andrew wrote the memo as a private citizen, the Court ordered that it be reviewed to determine whether it addressed a matter of public concern. If so, then court will need to balance the interests of the employee, as a citizen, and the interests of the State, as an employer, in promoting the efficiency of the public services it provides.

WHAT IS A MATTER OF PUBLIC CONCERN? • Factors to consider: Context, content and manner of speech, legitimate news interest or value to society. • City of San Diego v. Roe (Sup. Ct. 2004): Ct. considered the First Amendment claims of a police officer who was terminated after the department learned of his sexually explicit off-duty behavior. • Made video of himself stripping off his police uniform and masturbating. Sold the video and other items (which connected him to the SDPD) on the adults-only section of eBay. The Sup. Ct., in reversing the 9th Cir., upheld the City’s decision to terminate Roe. • No balancing of interests was necessary as Roe’s conduct did not touch on a matter of public concern.

Roe, cont. • Termination was upheld as the PD “demonstrated legitimate and substantial interests of its own that were compromised by Roe’s speech.” • Roe’s sexually explicit conduct “brought the mission of the employer and the professionalism of its officers into serious disrepute.” • If not a matter of “public concern,” then no need to apply the balancing test.

Dible v. City of Chandler (9th Cir. 2008) • Officer was terminated by PD for maintaining sexually explicit website featuring himself and his wife. Operated site for money – no intention to express any kind of message or engage in social or political commentary. • PD learned of site and dismissed Dible. • Basis: Violated policy from bringing discredit to the city service.

Dible, cont. • Court asked “whether a police officer can ever disassociate himself from his powerful public position sufficiently to make his speech (and other activities) entirely unrelated to that position in the eyes of the public and his supervisors.” • Dible’s activities “brought the mission of the employer and the professionalism of its officers into serious disrepute.” • Negative impact to PD – Officers indicated that they had been questioned and ridiculed about the website. A female officer claimed she had been called a “porn whore” by an arrestee. • Concern about its ability to recruit female officers.

Dible, cont. • Court rejected Dible’s First Amendment claim. “Ronald Dible may have the constitutional right to run his sex oriented business, but he has no constitutional right to be a policeman for the City at the same time.”

Thaeter v. Palm Beach County SO (11th Cir. 2006) • Court upheld the SO’s termination of sheriff’s deputy for participating for compensation in sexually explicit photographs and videos available for paid viewing on the Internet. • As in the Roe case, the officer’s conduct (or, “speech”), did not involve a matter of “public concern.” Therefore, no need to apply the Pickering balancing test. • Government can legally apply constraints on employees’ behavior, even if “off duty.”

MATTERS OF PUBLIC CONCERN – BALANCING OF INTERESTS • Interests of law enforcement employer in maintaining discipline and harmony in the workplace, close working relationships, and community trust and respect must be given significant weight. • Locurto v. Giuliani (2nd Cir. 2006): Even if it is a matter of public concern, the government employer can consider the potentially disruptive effects of its employees’ actions.

SO HOW DO WE AVOID THESE PROBLEMS? • Law Enforcement agencies need to provide clear guidance for their employees regarding the use of social media. • What to include: • I. Warning regarding the misuse of electronic media while on duty/employer-provided computer systems; • II. Prohibition on use of agency name, uniform, logo, marked vehicles;

DEPARTMENTAL GUIDANCE,cont. • III. Ban on disclosure of confidential information (Should also prohibit the disclosure of information officers acquire during the course of their duties unless the information is authorized for release by the department or its release is otherwise authorized by law.) • IV. Caution regarding comments/postings that impair working relationships, impact morale, impact community relations or otherwise impact the efficiency and effectiveness of operations. • Consider IACP’s Model Policy • Good start, and can be tailored to meet the needs of your agency.

Cybervetting Applicants by Law Enforcement Agencies: Current Issues and Trends • Cybervetting – As noted in the publication entitled “Developing a Cybervetting Strategy for Law Enforcement,” “cybervetting is an assessment of a person’s suitability to hold a position using information found on the Internet to help make that determination.” • The above publication is an excellent resource, and can be located on the IACP’s social media website.

Cybervetting • Increasingly common: 91% of employers surveyed in September 2011 reported using social networking sites to screen prospective applicants. • Hiring qualified applicants is particularly critical in law enforcement. “As social media has grown, is that this is a really critical component, and you really gotta make sure you are doing this.” (San Luis Obispo police captain as quoted in a local media outlet.)

Cybervetting, continued • Why important: If properly conducted, it will provide a number of benefits to law enforcement, such as: 1. Increasing public confidence in police agencies by ensuring that law enforcement personnel are not engaged in inappropriate behavior; 2. Corroborate or contradict information provided on a resume or job application;

Cybervetting, continued • 3. Identify candidates who posted text, audio, or images that: a. contain sensitive law enforcement information; b. reflect that a subject has engaged in certain criminal offenses; c. Indicate that a subject is associated with hate, criminal, or terrorist organizations; d. reflect that the subject is a danger to self or others. (Source: Developing a Cybervetting Strategy for Law Enforcement)

Cybervetting, continued • The need to exercise caution in this area. • Concerns about acquiring information about protected/sensitive information. (i.e., medical issues, religious beliefs, etc. Will the candidate be able to allege that he/she was not hired because this information was made known to the agency?) • Ensure that your agency’s policy considers current case law and legislation. • “Quality control” of vetting process. Is the information being considered by the agency accurate? Who is conducting the vetting? Are they properly trained? How is the information being protected?

Legislative Trends • Maryland was the first state to enact a law that prohibits employers from requesting or requiring that employees or applicants provide their passwords to social media accounts and other personal online accounts. • Illinois has followed suit. (Illinois Public Act 097-0875, eff. 1/1/13). There is no exception in the law for law enforcement or other sensitive occupations. • Similar bills have been introduced in California, New York, and Washington. There is also a push for federal legislation in this area.

Questions? • SSA MICHAEL T. PETTRY FBI – Office of the General Counsel Legal Instruction Unit FBI Academy, Quantico, VA • 703-632-1680 • MICHAEL.PETTRY@IC.FBI.GOV

SOCIAL MEDIA: LEGAL CHALLENGES AND PITFALLS