Webinar presenter Rick Hodsdon answered a number of your questions after his presentation, "What Justice Professionals Need to Know about First Amendment Speech and the Public Sector." Here are a few of his responses.
Audience Question: Are tweets or Facebook messages expressing support or disdain for an elected official considered matters of public concern? In the context of what you said previously we're talking over and above hitting the like button in this case.
Rick Hodsdon: The like button is an easy one because we have compelling case law that gives us some guidance on that. I think that they have to get you a lawyer to answer that. It depends. The smart follow-up question is what does it depend on. The answer is probably content. The other thing is to remember that we have case law that says that something that could be protected public concern comment, tweets, for example, can lose that protective status if, for example, it is disrespectful, defamatory. The First Amendment does not protect in that context. Respectful tweet that may be laudatory or derogatory to an elected official, again, the keyword there I think is disrespectful. The more it is policy oriented is more likely I think it is to be protected. I do think it would utilize the balancing content.
Audience Question: How does the same topic apply for religious activities and religious speech?
Rick Hodsdon: When you start to get into the religious speech and religious elements, certainly those are protected as well. The case law does protect them in terms of making religious statements and protecting religious beliefs and practices. On the other hand, case law does not require the employer to do anything to facilitate the promoting of a particular religious view. If someone is using government resources to, they were in charge of a social media website and they are promoting religious activities that could certainly be subject to discipline because you are using government resources to promote religion which is not First Amendment protected.
Audience Question: Can an employer require an employee to include a disclaimer on their website to the effect that this is not official communication and these are my personal opinions? Can they require that this is part of policy?
Rick Hodsdon: These policies that I have seen and I wish I have the golden rule one but they're always evolving so each one I see one and this one’s got a piece that I like. I think an employer can legitimately do something like the following because most employer explicitly prohibits the use of any government resources for personal gain or personal benefit. Often, I see them having a policy saying you may not identify yourself as a member of as the official spokesperson of this agency without consent. What I have seen a few agencies say is that on a social media presence you may not identify yourself as an employee of this agency unless you include a disclaimer of the sort you are describing. I think that's probably consistent with the social media case law.
Audience Question: If the person works in the public safety and has a social media account but witnessed a changing environment and they want to proceed cautiously in the future, what would you recommend? Should they do weekly accounts? Should they just stop using them? Should they just clean up previous comments that they might worry about? What's the best way to move forward?
Rick Hodsdon: Well I'm aware that some police departments, especially in the larger eastern seaboard area have a policy that if you're in a special unit like deep undercover, narcotics, organized crime, you cannot be in those units and have a social media presence simply because of the risks of exposure, cover being blown, tagging and so on. Just simply pulling a plug on, if you have an account for a long time and your concerned about how this could impact your police profession or criminal justice profession beyond just police, simply ending your social media presence isn't going to be enough. Anything goes out into the world now probably stays out there for a long long time. I think what you can to remove, clean up, taking your presence away more than just shutting down your acct would be my recommendation.
Audience Question: Is there an actual requirement to produce evidence in a disciplinary hearing that the actions of the employee actually impacted the operations of the law enforcement organization?
Rick Hodsdon: Well, there are certainly easy cases for the employer. If you go through the cases how much the employer won versus how much the employer lost some of these First Amendment cases. If you can show disruption of operations, negative commentaries, anything on those lines or direct proof of harm to the image then those are going to be easy cases to win. I am not aware of any cases that definitively said in order to prevail the employer has to show that. I think if it's going to be an employer says this appears from our perspective the content is such it has an impact. Those cases might resolve in discipline being sustained. Probably the first case I would look as an employer if I were looking especially if it's a social media post, I would look not only on what the employee posted but I'd look at responses that they generated. If somebody chimed in and said that, you know, if I had a negative post about law enforcement officer or agency and I got folks chiming in, liking it, thumbs up saying yeah, you're right about those knuckleheads or whatever for those reasons. I would make sure as an investigator, I would pull all those comments because clearly there are people out there that are being incited to promote an anti-police perspective in the example I gave. I think the comments to the social media, the number of hits, the number of likes, responses that in itself may be enough to establish the negative, derogatory, harmful to the image impact of many cases in the modern era.
Audience Question: I think you essentially answered this next question which was must an agency wait for such harm to occur when they can plainly anticipate that as a likely outcome and it sounds like they can a case as a like outcome if I heard you correctly?
Rick Hodsdon: I think so especially if instead of a negative derogatory about the agency type of situation but if it was the harassment type we discussed in our last few minutes there I think the agency would be foolish to wait for someone to come forward and complain. Employers have enough proactive or affirmative obligation to take reasonable measures to make sure a hostile and offensive working environment does not happen. If the employer knows or is made aware of these things, I think the employer can proactively take measures to deal with it — and should.
Audience Question: Can you comment on police officers demonstrating some affinity for hate groups or extremist group either by membership or through tattoos. Also, in these divisive times who decides which groups are extremist groups or hate groups? It's a lot to potentially unpack whether if there is a case law or experience you have in those situations?
Rick Hodsdon: There is some case law in terms of regulating in the First Amendment in terms of law officers and extremists or hate groups right in a different context. One area which you might not even think about in terms of First Amendment on the top of your head is the grooming and appearance policy. For example, someone who has certain tattoos that can be like a Nazi swastika that is perceived to be associated with a hate group. Who or what is a hate group is certainly a fluid topic. There is no definitive list. Let's put it that way. Certainly, groups that would fall within the definition of a gang. Many states may have a statutory definition of a gang being able to prohibit or regulate any signals or issue of gang membership. That I think will have a lot of 1st amendment issues. There is no definitive answer is I guess what I'm stumbling around trying to say as to what that is. The traditional hate crime groups may be looked at as hate crime group for law enforcement, FBI type purposes that might be investigated. Supremacist group, religious or racial issues those folks generally will not be protected at least to the extent that behavior associated that would harm the image of the agency.
Audience Question: Are you aware of any case law where the balancing test is applied for First Amendment speech for a personal employee by the private employer such as a university?
Rick Hodsdon: Of course, public universities are going to be covered by the First Amendment. Private universities that's going to be a difference with the freedom and so on. There's now a lot of case law that applies the First Amendment to private employers because the language of the First Amendment does not impact private employers. Most of these cases from the civil lawsuit standpoint are 1983 cases. By definition to be a proper 1983 defendant, you have to be a government actor. There are cases that private employers or private persons are found to be government actors. For example, if they have a contract, we see this all the time for example with corrections where you have a private medical provider which is held liable to be a 1983 defendant because they have a contract with the sheriff to round the jail or provide medical care in the jail. Certainly, under those kinds of contractual situations if the entity were deemed to be government actor for civil rights purposes then they would be deemed a government contractor for First Amendment purposes. Private business are rarely have I seen to have been covered by the First Amendment. They may be covered by some other, tortious interference with contract or invasion of privacy or traditional tort claims but not First Amendment 1983 liability.
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