HERBERT E. LIVERMAN v. CITY OF PETERSBURG
US Court of Appeals for the Fourth Circuit, Dec. 15, 2016, Wilkinson,
Free Speech – Police department policy prohibiting criticism of the department on social media was over-broad

Facts:
Two Virginia police officers were reprimanded and placed on administrative probation for Facebook postings criticizing the promotion of rookie officers to instructor and sergeant positions as well as criticizing leadership generally. After placing them on probation, the department changed its promotion policy to prohibit officers on probation from taking the sergeants’ exam. When they complained, they became the subject of “several complaints and investigations within the Department.” Investigations were begun against both officers. One officer was exonerated on claims against him and the other resigned prior to termination when a claim against him was substantiated.

Public employees may not “be compelled to relinquish the First Amendment rights they would otherwise enjoy as citizens to comment on matters of public interest.” “[P]ublic employees are often the members of the community who are likely to have informed opinions as to the operations of their public employers.

After all, “[g]overnment employees are often in the best position to know what ails the agencies for which they work”

“Similar to writing a letter to a local newspaper… publicly posting on social media suggests an intent to ‘communicate to the public or to advance a political or social point of view beyond the employment context.'”

Nonetheless, a citizen who accepts public employment “must accept certain limitations on his or her freedom.”

In determining whether speech by government employees is protected by the First Amendment:
– Does the speech relate to a matter of public concern?
– Does the policy balance the interest of the employee in public comment against the employer in promoting efficiency?
– Burden on expressive activity
– Real, not merely conjectural, harms avoided

“Purely personal” speech is not protected.

SCOTUS inNTEU noted that prior restraint on speech may be over-broad in that it “chills potential speech before it happens” particularly where it impedes a “broad category of expression.”

In that case, the Government “must show that the interests of both potential audiences and a vast group of present and future employees in a broad range of present and future expression are outweighed by that expression’s ‘necessary impact on the actual operation’ of the Government.”

Further, the government “must demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way.”

The provisions of concern in the Department’s Social Media policy:
Overall:

dissemination of any information “that would tend to discredit or reflect unfavorably upon the [Department] or any other City of Petersburg Department or its employees.”

Negative Comments Provision:

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.

Public Concern Provision:

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.

On the burden side:
The Court noted the “astonishing breadth of the social networking policy’s language”

Social networking sites like Facebook have also emerged as a hub for sharing information and opinions with one’s larger community. And the
speech prohibited by the policy might affect the public interest in any number of ways, including whether the Department is enforcing the law in an effective and diligent manner, or whether it is doing so in a way that is just and evenhanded to all concerned.

This is ostensibly limited by the “Public Concern Provision,” which allows comment on issues of “public concern.”

On the harm side:
“[D]ivisive social media use undermines the Department’s interests in maintaining camaraderie among patrol officers and building community trust”
deference applies with special force to police departments because they are “paramilitary — discipline is demanded, and freedom must be
correspondingly denied.”

On balance:
“the speculative ills targeted by the social networking policy are not sufficient to justify such sweeping restrictions on officers’ freedom to debate matters of public concern”

The Public Concern Provision “does not salvage the unacceptable overbreadth of the social networking policy taken as a whole. Indeed, the Public Concern Provision does not purport to nullify or otherwise supersede the blanket censorship endorsed by the Negative Comments Provision.
If the Department wishes to pursue a narrower social media policy, then it can craft a regulation that does not have the chilling effects on speech that the Supreme Court deplored.”

Qualified Immunity-
Officials “are not liable for bad guesses in gray areas.”

However, “this case does not involve gray areas: the right against such a sweeping prior restraint on speech was clearly established and then some. Indeed, it is axiomatic that the government may not ban speech on the ground that it expresses an objecting viewpoint.”

Retaliation-
Without some proof that the investigations were pretextual, those claims were dismissed. There was insufficient allegation that the Chief caused the claims, as each were instigated by “independent basis.”

One officer was investigated for sexual harassment based on a sexually explicit e-mail that was located by the department. The officer subsequently “admitted to engaging in sexual misconduct on Department property and while on duty.”

The other was investigated and cleared after allegations regarding “a report [the officer] allegedly made to the media about another officer’s spouse.” Another investigation into the officer arising from his involvement with the “Shop with a Cop” program resulted in a determination that it was unfounded.

Municipal Liability-
Municipal liability for policy “attaches only where the decisionmaker possesses final authority to establish municipal policy with respect to the action ordered.”

Even though the police chief was under the direction of the city manager, the policies that he enacted were still “final” in that they required nothing additional to implement.