Freedom of speech and internet publishing for da Poh-leece
Two years ago, when a police officer blogger was told by her employer to kill her blog, I furiously set about learning where my freedom of speech rights were limited by my employer’s rights to maintain discipline and effectiveness. Another blog written by a police officer has bitten the dust within the last week – although I think it was a case of self-censorship / self-preservation. His employer had read his blog, and while having minor problems with one or two posts, the blogger told me he was thinking of making the blog disappear rather than trying to fight the man.
After completing my research a couple of years ago, I published my thoughts as a service to other officers who blog. I sent a copy to the officer who recently yanked his blog in an effort to give him some background information on which to do his own research and reach a decision.
I’m going to republish that old post here:
A cop blogger, whose name and agency I will not mention here, has been forced to yank a blog because of adverse reaction at work. A letter of reprimand was placed in this blogger’s personnel file because combining work issues and personal opinions was perceived as a breach of conduct rules.
I am sure many of you are thinking, “pffft, big deal! Bloggers get dooced all of the time just because they blog.” You would get my agreement on that point because, in general, I think taking action against an employee for writing about their employment and their opinions is wrong. However, as we all know now, most people in this country are in “at will” jobs, which means they can be sacked whenever the employer decides it doesn’t like the cut of their jib.
But, government employees are different.
Not because we are a special class of people deserving of more rights than anyone else. No, it’s because our employers are special creatures. We all work for “The Government”. Congress shall make no law … abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
As we all know, although the Amendment’s wording restricts Congress, it applies all the way down to the lowest, least consequential body of government. Congress cannot send a FBI SWAT team to my house to haul me off because they don’t like what I said about Hilary Clinton any more than the City of the ‘Burbs can kick in my door to haul me away because I wrote something derogatory about the Mayor.
“So”, you may ask, “what the hell does that have to do with government employees and Freedom of Speech?”
Damn, you are sharp. I am glad that you asked that question.
The Amendments restrict government from screwing with our rights and freedoms. If I worked at IBM and they wanted to fire me because they don’t like seeing their name mentioned on my blog, that is their privilege. The Amendments aren’t aimed at private businesses interfering with my rights, just the government.
All of this does not mean that I get to say anything I want and stand behind the First Amendment any more than any other citizen can shout “fire!” in the proverbial crowded theater. Government has to be able to protect its interests when they are valid and legitimate things that a government is supposed to concern itself with. Like public safety and national defense. Imagine how ineffectively such functions would be if employees had an unfettered freedom of speech regarding the work place.
The Supremes have been dealing with this particular aspect of Freedom of Speech since the 1960’s, and here is what it looks like today:
The First Amendment to the U.S. Constitution guarantees to all citizens, including governmental employees, the right to speak on matters of public interest. This right is, however, not absolute, and analysis of any particular set of facts will involve a balancing of the various issues at stake.
The Court generally upheld the application of First Amendment protections to governmental employees, establishing a balancing standard weighing the employee’s interest in commenting on matters of public concern against the employer’s interest in promoting the efficiency of the public services it renders.
In other words, if you are pissed at your supervisor because he is critical of your work, that is a private matter and not of concern to the rest of the public.
If your agency is releasing nuclear waste into the water supply, well that is a major concern to the populace as a whole.
Since the employees all work for the government, and so much of what they do involves public interests, a balancing test was developed to determine whose interests are more important, the employee or the government: How disruptive to operations was the speech, was it public or private speech, and to what degree did the speech touch on matter of public concern?
The final question to be answered is easy, was there a significant harm done to the employee and was it caused as a retribution for the exercise of freedom of speech?
So, here are the Cerberus Rules of Cop Blogging: Please bear in mind that I am completely unqualified to offer such opinions; you should check with your physician before starting this program, actual results may vary, your individual financial situation may be different, and tax, title and license fees are not included. In other words, if you get fired following my advice without doing your own research, you are clearly an idiot and deserve what you got.
1. Don’t do it. Seriously, if you don’t do it you won’t get zapped. But, if you really want to cop blog, I recommend that you,
2. Never specifically identify anything or anyone at your place of work. (See: Cerberus, Some City, and Giant Red State. All figments of my imagination). How can I interfere with or harm the operations of an imaginary agency in a place that never existed?
3. If you are going to break rules # 1 and # 2, then you damn sure better be certain that what you are cop blogging about is a MATTER OF PUBLIC CONCERN.
4. Read and know your agency’s policies on employee freedom of speech, respecting other employees, insubordination, and releasing reports and confidential information. Understand what all the words mean in the context of the policy manual (usually there is a definitions section with all of the legalistic definitions for specific words like “may” and “shall”). Having memorized the policies, carefully blog by not breaking the rules. Imagine your supervisor, commander, some jerkoff in IAD, and the Chief of Police (actually his rat-faced attorney), all carefully reviewing every post you ever wrote. See them with their highlighters, the well-thumbed policy manual open and a stack of blog entries printed out? It’s late at night and cigarette smoke curls in the lamplight as a magnifying glass is used. Now, imagine them jumping up with glee and shouting “Aha! I got you now, you son of a bitch!” Finally, see them running down to HR to start the paperwork on your career change.
5. Consider carefully what you publish to be sure that is does not cause undo interference or disruption of the operations of the police department. What exactly does that mean? (Hell, I don’t know. Ask me something easy, like how many crackheads does it take to clear a city block of all aluminum cans. ) It’s probably a question of proportionality. Does the public interest outweigh whatever harm is done? If you publish pictures of the Chief stealing dope out of the back door of the evidence room, the resulting disruption caused by his firing and indictment is probably acceptable in light of the public need to have a non criminal running the agency. On the other hand, if you have video of the man picking his nose, well the resulting disruption from his public embarrassment is probably not worth whatever mild interest your publication may have found in some dark corner of the world.
6. DO IT ON YOUR OWN TIME, USING YOUR OWN FORUM AND EQUIPMENT. Don’t be a dumbass and blog from work. Don’t even read your blog from work. When IAD tells the computer evidence techs to “take a look at his machine”, your history will be found and I bet your agency has some rules about “conducting personal business while on duty”, “misappropriation of city property”, “being available to superiors, subordinates and citizens”, and “attention to duties”. (We even have one that prohibits reading any non-work related material while on duty. I’m not sure why there are always newspapers laying around in the crapper – perhaps they are for emergency backups when the TP runs out).
7. Don’t gossip or assassinate someone’s character. If you engage in personal attacks (The only reason Bob got the new car and his choice of days off is because he sucks the Sergeant’s….) you make your speech more of a personal thing rather than the protected public interest speech.
8. Decide now what you will do when they call you in. Note, that I didn’t say “if they call you in”, because you need to be prepared now. Are you willing to go to war with the brass over your blog, or do you want to follow one of Cerberus’s Addendum to Murphy’s Laws of Police Work? (Giant Bureaucracies have crappy memories. When you screw up, if you manage to keep your job, just keep your head down and within 2-5 years everyone will have forgotten about it.