I have received an influx of questions pertaining to social media policies lately and I have to ask why? This issue has already been discussed almost 20-years ago when the courts ruled that public employees have fewer rights to free speech under the First Amendment than private citizens. This is because the government has become your direct employer and so the government has a direct interest in regulating the speech of its employees.

As a public employee, your right to speak, even on matters of public concern, is only protected when the value of the speech outweighs the interest of the police department to maintain efficiency, morale and discipline.

The courts have held that police officers should keep in mind the following three principles:

1. The First Amendment gives officers the right to freely discuss their thoughts on matters of public interest (not of personal concern);
2. Officers should not make comments that negatively impact the efficiency, effectiveness, or morale of their respective police department;
3. The merits of 1) should outweigh the merits of 2).

For example, an off-duty police officer would be free to express his or her thoughts on a local issue (taxes, etc) in the public comments portion of a town council meeting, as he or she would be protected under the First Amendment in this case. Such an officer could even publicly criticize his or her department, as long as the complaints touch on matters of public concern and are not personal issues the officer has with his or her agency. As examples, these can include criticisms on whether the department is properly staffed to adequately protect the public, or concerns on whether an investigation was properly handled.

In a different example, a police officer who chooses to bad-mouth his or her agency on issues that have nothing to do with matters of public interest (complaints against his or her agency for personal reasons, publicizing personality conflicts with co-workers or superiors, publicly making bad jokes about the chief’s lousy haircut, etc.) would not only conflict with the first principle outlined above but would conflict with the second as well. As a result, such an officer could be lawfully disciplined by his or her police agency.

A public employee should ask, “Did I speak as a citizen on a matter of public concern?” If the answer is yes, then your employer must justify treating you differently from any other member of the general public.

The rationale for limiting a Government employee's constitutional rights are: (1) government employees can have a greater propensity to adversely affect government operations because public employees often occupy trusted positions in society; and (2) government offices could not function if every important decision became a constitutional matter.

So I ask, what’s the difference between already decided free-speech issues, as it effects public employees, and social media postings? I can think of two:

1. Posting messages publicly to fellow employees could be construed as “concerted activity” by the NLRB; and
2. Social media has an immense effect on reaching those that wouldn’t ordinarily be ‘around the water cooler.’

But even these two differences don’t change the aforementioned court decisions regarding the free speech of public employees. Simply put, don't bitch about work publicly through social media. If you have a legitimate gripe or concern, file a grievance. If it's not grievable, you should evaluate whether your gripe is sufficient enough to be vocal about. Remember the rule of thumb, “Comply now, grieve later.”

For supportive case law and details of the “balancing test” and “matter of public concern” analysis, view the Case Law tab and scroll to Internal Investigations > Free Speech Issues.