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November 5, 2013
[Blue Line Lawyer]

What Happens on Facebook, ends up in HR

About once every month, I send a private message or text to a LEO I know on Facebook. This usually follows my reading of a post they wrote criticizing their command staff, work conditions, or speculating about the anatomical deficiencies of management within their department. I know folks get frustrated, but I am sometimes amazed at the posts I see.

The 11th circuit Federal Court of Appeals in Atlanta recently issued an opinion that should be a warning to all LEOs. The case is Gresham v. City of Atlanta. The officer posted some comments on Facebook criticizing her department. The department has a rule requiring departmental criticism to flow through proper channels. When the Facebook posts were brought to the attention of her department, she was subjected to an investigation and ultimately claimed that she was denied a promotion due to the post. This caused her to file suit pursuant to her First Amendment right to free speech.

The Federal district Court dismissed her case stating that her post violated departmental policies and caused a disruption of the police agency.  She appealed to the 11th Circuit which affirmed the dismissal. The most significant part of the opinion is the determination that the burden on the department to show disruption of operations is pretty low in this circuit.

So what is the take away for LEOs? First, Facebook posts are public. Even if you have security tightened down on your profile, your friends can still read it. If they tell someone else, you can find yourself in internal affairs. Second, make certain you are aware of your department’s Facebook policy as well as policies affecting criticism of the department. Third, your First Amendment rights to free speech are not absolute. As a safe bet, if you are not speaking on a matter of “public concern” you likely will not have protection. What is public concern? Well here is a quick test. If you would be the only one who cares about what you are saying, it is clearly NOT a matter of public concern. Finally, use the newspaper tests with your Facebook posts; if you would not want the post printed in your local paper, don’t write it!

I believe LEOs should be able to use any type of social media they choose just like anyone else. However, an ounce of common sense prevents your department from exacting a pound of your flesh! Stay safe.

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Disclaimer: This blog is for informational purposes and should not be considered legal advice about a specific issue or situation. Working directly with an attorney on your situation is the best method for navigating legal issues. If you have a concern about a specific issue or situation, you should seek legal advice without delay. Contact the supreme court or bar association in your state for assistance locating attorneys in your area.