Social Media Use - Conduit Street

Kevin Karpinski, EsquireKarpinski, Colaresi & Karp, P.A.

120 East Baltimore Street, Suite 1850Baltimore, Maryland 21202

(410) 727-5000

Social Media Use Facebook – 1.15 BILLION users / 669,000,000 daily

active users

Twitter – 555,000,000 users (58,000,000 tweets per day)

YouTube – 4 BILLION views per day / 100 hoursvideo uploaded every minute

Tumblr – 150,000,000 users

MySpace – 25,000,000 users

Instagram – 40,000,000 photos uploaded per day

Evolving Law:

Employer access

Employee discipline

But it’s my private Facebook account!

“Given the millions of users . . . privacy is no longer grounded in reasonable expectations, but rather in some theoretical protocol better known as wishful thinking."

“Only the uninitiated or foolish could believe that Facebook is an online lockbox of secrets.”

Discipline of Public Employees for Social Media Activity

First Amendment Public employees have limited free speech

rights

Government subject to First Amendment

Government employer ensure smooth and efficient operations / provide public services

Government employee often in best position to know of government wrongdoing

First AmendmentConnick-Pickering balancing – balances:

Right of employee to speak (government misconduct / private citizen)

Right of employer to control / discipline employees

First Amendment Connick-Pickering test – employee speech is protected

only if:

Employee speaks as private citizen on a matter of public concern (not as employee on a matter of personal interest)

and

The employee’s right to speak is greater than the employer’s interest in restricting the speech

First AmendmentPrivate citizen versus speaking for the

government:

Garcetti v. Ceballos, US SCt (2006) –speech made as a public employee

Personal opinions about political, social, or personal issues are matters of public concern

Complaints about employer – speaking as employee, not as a citizen

First AmendmentMatter of public concern:

Whistleblowing

Safety violations

Reporting Misconduct

NOT personnel gripes or grievances

First Amendment

Pickering balancing:

Interferes with order and mission of the agency

Reflects poorly 0n the officer and agency

Detrimental to the public trust

Impairs operation and efficiency

Undermines authority of chain of command

Undermines morale

Impacts discipline

First Amendment Public safety agency:

heightened interest in “the need for discipline, esprit de corps, and uniformity” and “camaraderie and efficiency”

“Order and morale are critical . . . With a need to secure discipline, mutual respect, trust, and particular efficiency among the ranks”

“particular interest in maintaining a favorable reputation with the public”

First AmendmentEmployer is not required to “allow events to

unfold to the extent that the disruption of the office and the disruption of working relationships is manifest before taking action”

Reas0nable apprehension of harm

More than mere speculation

PO Susan Graziosi, Greenville, MS (2012)

Dear Mayor , can we please get a leader that understands that a department sends officers (to) the funeral of an officer killed in the line of duty? we had somethings (sic) then that we no longer have..LEADERS. .

Graziosi v. City of Greenville, U.S. Dist. Ct of MS (2013)

Spoke as an employee “questioning the leadership of the police chief due to her frustration . . . and it was from her perspective as a disgruntled police officer, not a concerned citizen.”

“did not speak out about any issue that related to public safety or trust . . . but rather an internal decision of the department”

Disruption to the PD – “the criticism of Chief Cannon had the ability to divide the department, or at least be a disruption to his leadership ability.”

Graziosi v. City of Greenville, U.S. Dist. Ct. of MS (2013)

Police Chief was not required to “tolerate action which he reasonably believed would disrupt the office, undermine his authority, and destroy close working relationships.”

PO Graziosi’s “venting on Facebook does not enjoy First Amendment protection.”

What’s wrong with this picture?

Sgt. William Nasuti, MA State Police (2010)

PO posed with underage drinkers

Pictures posted on Facebook – 800 “friends”

Pictures sent to local news, sender called sergeant “an absolute embarrassment . . . it irritates me that this guy could be pulling me over in the future…”

Social Media Policy

Considerations

Social Media Policy Policies found unconstitutional:

Prohibits or requires obtaining permission for communications with media about work-related issues

Prohibits or requires permission to criticize department

Social Media Policy Common policy prohibitions:

Crime scene or incident scene photos

Photos depicting seized evidence, victims, suspects

Confidential information (medical, CHRI)

Statements / endorsements that could be interpreted to represent views of the employer

Social Media Policy• Common policy prohibitions:

No social media use on duty

Do not identify yourself as an agency employee (or require disclaimers)

Do not post photos with agency logos, uniforms, badges, ID patches, equipment, or facilities

Do not post about events or incidents occurring in the agency or learned through employment


Posts that ridicule, malign, disparage, or disrespect any race, religion, sex, gender, sexual orientation, nationality, or any other protected class

Posts construed as harassment, threats of violence, sexual, violent, racial, ethnically derogatory material, weaponry, or offensive comments, pictures, artwork, video in conjunction with any reference to the agency


Posts that include ethnic slurs, profanity, personal insults, material that is harassing, defamatory, fraudulent, or discriminatory, or other conduct or communications that would not be acceptable in the workplace

Posts that include discourteous or disrespectful remarks regarding another’s ethnicity, race, gender, religion, gender identity (including self-identification)

Social Media Policy Liverman v. City of Petersburg, E.D. Va. (2015)

Matter of public concern:

“There used to be a time when you have 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.”


Not a matter of public concern:

“Perfect example and you know who I’m talking about … How can ANYONE look up, 0r give respect to a SGT in Patrol with ONLY 1 ½ years 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 P0lice Vet, who knew tried telling and warn the admin for promoting the young Rookie who was too inexperienced for that roll to begin with. I’m with ya bro . . .


Policy provisions:

Prohibits posts that “may bring discredit to” the PD

“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.”


Policy provisions:

“Officers may comment on issues of general or public concern (as opposed to personal grievances) so long as the comments do not disrupt the workplace, interfere with important working relationships or efficient work flow, or undermine public confidence in the officer.”


“These provisions clearly aim at speech that is of considerable importance to the public. Indeed, discussion regarding Department policies and activities is ‘perhaps the “paradigmatic matter of public concern.”’”


Applying Pickering balancing to a policy:

“balance the employer’s interests in government operations with the interests of “both potential audiences and a vast group of present and future employees in a broad range of present and future expression.”


Does speech impair efficiency of the workplace by:

Impairing maintenance of discipline

Impairing harmony among co-workers

Damaging close personal relationships

Impeding the performance of public duties

Interfering with the operation of the agency

Undermining agency’s mission

Detrimental to the public trust


“The capacity for a particular incident to generate public attention is obviously highly relevant to the . . . assessment of the incident’s disruptive effects.”

Court distinguished case from ones where Facebook posts were extensively covered in the press and public were aware of connection between poster and law enforcement agency


While the police department has a “particularly strong interest in maintaining discipline and order,” the department’s interest did not outweigh the officer’s interest “and the public’s interest in allowing freewheeling debate on matters of public concern.”

QUESTIONS?

Documents

Social Media Use - Conduit Street