Column: Social Media, Public Employees and the First Amendment (New York Law Journal)

The explosion of social media, which allow people to project themselves across the country and around the globe, has greatly intensified the tension between the right of those working for the government to speak freely as private citizens and the right of public agencies to regulate employee speech that affects agency functioning. In an age of Facebook and Twitter, the considerable First Amendment difficulties previously presented by public employees posting signs on their lawns or writing to the local newspaper now seem positively quaint.

Last week, the NYPD issued its first policy formally governing the use of social media by its officers. This comes on the heels of the March 18 resignation of the son of the New York City Fire Department’s commissioner for a series of racially inflammatory Twitter posts. The issuance of the NYPD’s new policy warrants an examination of the implications of social media on public employees’ free speech rights, which ironically may be greatly diminished by the power of social media to amplify speech.

Holmes, Melville and Honoraria

Recognition of the tenuous First Amendment position of public employees dates back to 1892, when Oliver Wendell Holmes famously wrote in an opinion for the Supreme Judicial Court of Massachusetts that a policeman “may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.” Many years later, however, the United States Supreme Court rejected the position that people forfeit their free-speech rights when they go to work for the government. And in a series of decisions since its seminal 1968 ruling in Pickering v. Board of Education of Township High School District 205, the Court has grappled with the rules governing employee speech that either takes place in government offices or happens outside the workplace but is about the work of government.

What the Supreme Court has rarely confronted is the scope of First Amendment protections for public employees who speak as private citizens away from the workplace on issues having nothing to do with their work. A 1995 case involving a federal ban on honoraria comes closest.

1n 1989 Congress prohibited federal employees from accepting any compensation for making speeches or writing articles, even when the speech or article had nothing to do with the employee’s duties. Invoking Pickering, career civil servants and two unions sued, arguing the ban violated the First Amendment rights of public employees.

Writing for the Supreme Court, Justice John Paul Stevens struck down the ban in United States v. National Treasury Employees Union. At the outset of his analysis, Justice Stevens paid homage to great writers who happened to make their living working as federal civil servants:

Federal employees who write for publication in their spare time have made significant contributions to the marketplace of ideas. They include literary giants like Nathaniel Hawthorne and Herman Melville, who were employed by the Customs Service; Walt Whitman, who worked for the Departments of Justice and Interior; and Bret Harte, an employee of the Mint. Respondents have yet to make comparable contributions to American culture, but they share with these great artists important characteristics that are relevant to the issue we confront.

With this by way of introduction, Justice Stevens then focused on the central issue in the case being about the right of public employees to speak freely wholly outside of the workplace, emphasizing that “[n]either the character of the authors, the subject matter of their expression, the effect of the content of their expression on their official duties, nor the kind of audiences they address has any relevance to their employment.” Given this, he articulated the following approach:

We normally accord a stronger presumption of validity to a congressional judgment than to an individual executive’s disciplinary action. The widespread impact of the honoraria ban, however, gives rise to far more serious concerns than would any single supervisory decision. In addition, unlike an adverse action taken in response to actual speech, this ban chills potential speech before it happens. For these reasons, the Government’s burden is greater with respect to this statutory restriction on expression than with respect to an isolated disciplinary action. 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.

Applying this test, the Court struck down the honoraria ban. Most significantly, it concluded that there simply was no factual basis for the claim that compensation for speeches and writing unrelated to the workplace posed any threat to the sound operation of the government.

A Cop on a Float

Though no Herman Melville, Joseph Locurto presented the Second Circuit with the precise issue of how to deal with controversial police-officer speech unrelated to the workplace. And in resolving his case, the Court recognized the difficulty in applying the Supreme Court’s First Amendment jurisprudence to truly private speech by public employees.

Locurto was an NYPD officer who for years had participated in Labor Day parades in Broad Channel, Queens, where he and other residents created and rode on floats that parodied movies. The parodies were often ethnically themed and offensive, and the 1998 float was no exception. As the Court explained,

For the September 7, 1998 Labor Day parade, the group, which included the plaintiffs, decided to enter a float called “Black to the Future—Broad Channel 2098.” The conceit, a play on the 1985 time-travel film Back to the Future, was to depict how Broad Channel would look in 2098 when, presumably, the community would be more integrated than it was in 1998. Each of the float participants, including the plaintiffs, covered their faces in black lipstick, donned Afro wigs, and accompanied the float along the procession in attire ranging from overalls with no T-shirt underneath, to cut-off jeans and ratty T-shirts, to athletic pants and sweatshirts. . . . The float participants engaged in various chants, including, “No Justice, No Peace,” “This isn’t Johannesburg,” and “We didn’t land on Broad Channel, Broad Channel landed on us.

Near the end of the procession, and apparently without the others’ knowledge, Walters held onto the truck’s tailgate, pretending to be dragged by the truck, and yelled, “Look what they did to our brother in Texas, we would not allow them here ….” The scene was intended to invoke and parodically recreate the dragging death of James Byrd, Jr., an African–American man who had been murdered months earlier outside of Jasper, Texas after being chained to the back of a moving pickup truck by three white men.

Captured on video and shown on television, the float caused a widespread controversy. Then-Mayor Rudolph Guiliani, whose administration had inflamed racial tensions with its heavy-handed police tactics, immediately announced he was offended by the float and that any public employee involved in it would be fired. Within days it surfaced that Officer Locurto was one of those on the float, and he and two firefighters were fired.

The three then sued (and I served as counsel for Locurto). Guiliani defended the dismissals as being motivated by a good-faith concern about an adverse impact on NYPD relations with the black community. Supported by testimony from the Reverend Al Sharpton, Locurto argued that this was entirely pretextual (and hypocritical) and that the Mayor was doing nothing more than trying to score political points. After a full trial in the Southern District of New York, the late Judge John Sprizzo found that Giuliani in fact had acted with impermissible motives and held that the dismissals violated the First Amendment.

On appeal, the Second Circuit recognized the shortcomings of Supreme Court precedent when it came to off-duty employee speech having nothing to do with the workplace. As Judge Guido Calabresi explained,

The Supreme Court’s First Amendment employment retaliation jurisprudence was not made for the situation before us. The seminal case, Pickering v. Bd. of Educ., involved the First Amendment claims of a public school teacher who was dismissed by the Board of Education of Will County, Illinois, after a letter she wrote criticizing the Board’s funding choices and purported lack of transparency was published in a local newspaper. Another leading Supreme Court case, Connick v. Myers, concerned an assistant district attorney who was fired for distributing a workplace survey that questioned office policies. More recently, Waters v. Churchill, involved a nurse who was dismissed for complaining about her supervisor. Each of these Supreme Court cases represents a version of the paradigm First Amendment retaliation case, in which a public employee suffers adverse employment action for criticizing her employer.

Notwithstanding this lack Supreme Court guidance with respect to off-duty speech unrelated to the workplace, the Second Court adopted a principle central to the Pickering doctrine as the Supreme Court had applied it to workplace-related speech: employers can punish otherwise protected speech if the employer reasonably believes it will disrupt the workings of the agency. And applying that principle, it ultimately concluded – in a long and tortured opinion – that Locurto and the two firefighters also on the float could be fired for their off-duty speech:

Police officers and firefighters alike are quintessentially public servants. As such, part of their job is to safeguard the public’s opinion of them, particularly with regard to a community’s view of the respect that police officers and firefighters accord the members of that community. . . . Because someone who walks a beat is often the representative with whom the public interacts, it is not difficult to see how such an officer who expresses racist views in certain situations could damage the efficient operation of the NYPD.

The NYPD’s Social Media Policy

The NYPD’s social media policy reflects the First Amendment tensions underlying the National Treasury and Locurto decisions. On the one hand, the policy does not limit itself to social media activity officially involving the business of the NYPD. Indeed, it has an entire section regulating “personal use of social media by members of the service.” And that section opens with the broad and vague warning that police officers “utilizing personal social media are to exercise good judgment and demonstrate the same degree of professionalism expected of them while performing their official duties.”

On the other hand, the particulars of this section of the policy are notable for adhering fairly closely to concrete concerns directly implicating the work of the NYPD. Those particulars involve such things as disclosing NYPD employment, disclosing the identities of other NYPD employees, posting photos while in department uniform, posting confidential department materials, and contacting witnesses, victims, lawyers, or minors involved in department matters.

Conspicuously absent from the policy is a prohibition on social media postings that are offensive or controversial, a ban that the department might try to justify by claiming such posting could reflect badly on the department. It is just a matter of time, however, before an agency adopts such a policy.

The Second Circuit opened the door to such a ban in Locurto, but any such effort would run squarely into the Supreme Court’s ruling in National Treasury. When the Court inevitably confronts the impact of social media on the First Amendment rights of public employees, it will have to grapple with the fact that, in our new world of social media and the Internet, very little speech is truly private. That reality poses a genuine dilemma for government agencies, which have a legitimate interest in not having their ability to serve the public damaged by controversial speech that can be instantly communicated to large audiences.

Yet this is the very type of speech the First Amendment is designed to protect. It would be a grave and ironic loss if the emergence of social media took us back to 1892 and Justice Holmes’ view that people forfeit the First Amendment rights they enjoy in their private lives when they go to work for the government.

Christopher Dunn is the associate legal director of the New York Civil Liberties Union.