Social media posts by public-sector employees have been in the news lately. A December 15, 2016, appellate court ruling from the Fourth Circuit continues the development of this area of law. Liverman v. City of Petersburg (4th Cir. 2016).
The Petersburg, Virginia police department disciplined two police officers, Herbert Liverman and Vance Richards, for their Facebook posts and comments after the officers criticized the department for using rookies as instructors and promoting inexperienced officers.
The police department had a social-media policy that prohibited speech critical of the government employer. While the court acknowledged that the department had a legally protected interest in avoiding “divisive social media use” by employees, the policy still had to allow for freedom of speech on issues of public concern.
The court found that comments critical of the department’s operations and policies went to what the court called the “paradigmatic” issue, meaning the ideal or standard of what constitutes a matter of public concern that is to be protected by the First Amendment. Public-sector employees are entitled to free speech and cannot lose their jobs when they exercise that right, especially when they are commenting on matters that would be of interest to the public at large that they are in a unique position to know.
The court found the policy to be unconstitutional on its face because any policy that would generally bar negative comments by officers regarding the department and other officers was overbroad when it was drafted. What this means is that the city violated the free speech rights of Liverman and Richards twice: when the policy was adopted, and again when it was used as grounds to discipline them.
This case points out why it’s wise to both carefully adopt and enforce policies concerning out-of-office activity in the public sector.