Today, social media is an absolute minefield for everyone but especially for law enforcement officers. With all of the anti-cop social justice warriors eager to sacrifice cops to the gods of political correctness, cops can’t be too careful when on the Internet.
Some believe cops have more free speech rights than they really have, while others feel cops have fewer speech rights than they truly have. The answer is closer to the middle because of the special considerations any public employee must be aware of, especially cops.
One overarching problem is the multidimensional nature of social media, and other broadcast and publishing venues, as it relates to cops. First, there is a lack of understanding about how the First Amendment works for officers, both on paper and in reality, by both civilians and cops.
Next, some police administrations interpret an officer’s free speech rights far too narrowly. For some, if they don’t like what the officer says, then the speech is not protected. Some even consider an officer’s personal political opinion to be insubordination.
Another problem is what the left interprets as a racist post is not universal. With all of the “dog whistles” and “microaggressions” the far left sees but normal people can’t, it’s hardly fair and shouldn’t get any traction. But, since the left owns the mainstream media, they control the narrative. Some leftists believe merely raising certain racial issues is itself racist.
For example, it seems objectively legitimate to ask if the prevalence of single-parent families is contributing to the violence in Chicago’s gang-infested neighborhoods. Some on the left will accuse you of racism just for bringing up such a notion. So, if I as an officer raise such an issue on a social media post, will my department accuse me of making racist statements and then fire me?
Lastly, let’s face it (and, yes, this is embarrassing): there are cops who write, text, post, or tweet some of the stupidest comments you’ll ever hear. And the limitations of words on a screen can make it hard to decipher if something is written in jest or seriousness.
For the left, it doesn’t matter—they will assume it’s all serious because they believe cops are racist. To dig into my cliché bag, some cops give leftists the rope that will be used to hang them. One suggestion: When associating with adult beverages, disassociate from social media!
So, let’s start with how the First Amendment’s free speech clause applies to cops, as I understand it. Police officers are in a strange place compared with most other occupations when it comes to posting on social media.
Employees of private companies have no constitutional free speech rights at work. The Bill of Rights protects them from the government, not private employers. They may have other legal protections such as from discrimination but if they lambast the boss or the company’s mission, they can be disciplined or fired. Police officers, on the other hand, since they work for the government, have special considerations.
As I said, private individuals are protected from governments violating their free speech rights. This is partly because the government must intrude on an individual, against his or her will, to infringe on his or her First Amendment rights. To the contrary, public employees have a voluntary employee-employer relationship with the government. And, as Val Van Brocklin wrote on PoliceOne.com, “Government employers aren’t required to pay for insubordination.” But, what constitutes insubordination?
Several years ago, I wrote a series of articles in the police guild newspaper (First Amendment protected), critical of my city’s forced leftist political indoctrination of its cops. While it was pointed and critical, it was also measured and respectful.
Many leftist cop critics complained that publicly stating my political opinion was insubordinate. In other words, if a cop speaks out on behalf of a leftist cause, he or she is not insubordinate. But if an officer speaks out against a leftist issue, it’s insubordination.
In my book, De-Policing America (2018), I wrote about the current case precedent on public employees and free speech: Garcetti v. Ceballos, 547 U.S. 410 (2006).
This case set down the standards that must be met for a public employee’s speech to be First Amendment protected:
First, the subject must be of public concern. For example, if you don’t like the way your captain dresses for church on Sundays, that’s not of public concern. But if you write about your reasons for preferring your mayor’s rival in the next election, it is of public concern, as any election is. So that’s protected, subject to meeting the second standard.
Second, the officer’s speech (written, spoken, or otherwise peacefully expressed) must be made as a private citizen. This means off-duty, not in uniform, and not as a part of an employee’s official duties. Providing an overt disclaimer, separating you from your agency and official capacity, is also advisable.
My department actually said my articles and interviews amounted to my “speaking on behalf of the department or chief.” This was even though my private, political opinion was in opposition to their political stance on the issue.
If these first two standards are met, there is one more hurdle: Is the employee’s free-speech interest outweighed by the department’s need to accomplish its mission safely, efficiently, and effectively? Is it just me, or does this one seem a bit broad and too open to interpretation? Oh well, let’s save it for another day.
My speech addressed an issue that at least half the American public, including the political class, consider a danger to a police department’s mission safety, efficiency, and effectiveness. Many people believe leftist political indoctrination of the police leads to more crime and de-policing. I know it does, firsthand. Remember, experience matters.
Again, some people try to shut down cops who argue for their free speech rights by simply citing Garcetti, as if its mere mention will scare cops away from expressing themselves politically. I know, they tried that with me. But after reading that case carefully, while Ceballos met the first standard, he didn’t come close on the second.
From De-Policing America:
Briefly, Richard Ceballos, a court staffer in Los Angeles, found legitimate flaws in a warrant the sheriff’s office requested from a judge and served. Ceballos brought the flaws to the attention of the defense counsel. Though the information about the flawed warrant may have been legitimate, the U.S. Supreme Court held the First Amendment does not protect a public employee while conducting official duties. It only protects the person when speaking as a private individual.
In this instance, Richard Ceballos acted in his official capacity on an active case with which he was associated. When he sued for a violation of his free speech rights, the courts ruled that his employers were within their authority to sanction him because he’d acted on an active case within the scope of his official governmental capacity. Ceballos’ concerns about the nature of a particular warrant service could be of public concern. However, he fell well short of the second obstacle: His public “speech” was done in his capacity as a government employee, regarding an active case, and as a part of his official duties.
My speech addressed a public concern: The political indoctrination of police officers and the substituting of social justice in place of equal justice, which has a huge impact on law enforcement’s mission safety, efficiency, and effectiveness.
Also, my speech was done while off duty, and it was not a part of my official duties. I was responding to a general political issue where the right is on one side and the left is on the other.
Being a paramilitary organization, officer discipline is necessary for employee cohesion and mission readiness. However, what happens when leftist cities cook up political indoctrination and serve it to officers as legitimate law enforcement “training?” And what happens when officers push back?
Well, sometimes pushing back involves making public statements (off-duty) either in the conventional media, TV, radio, and print publications or expressing oneself on social media.
For some strange reason, there are officers who mistake the Internet and social media for the locker room, a private gathering in a pal’s living room, or BS-ing with buddies at a bar.
I see some comments cops make, for which they’ve been disciplined or fired, and think, that’s not so bad. It’s not racist. It’s just dumb and sometimes even funny (because I have a sense of humor). But once in a while, I come across an officer’s comment and say, “Oh, sorry. I can’t help you there.”
One officer in Oregon, fired for social media comments, made some of these I-can’t-help-you-there posts on Facebook. According to PoliceOne.com, about the radicals terrorizing Portlandians on their city streets, this officer posted, “Where’s a pissed off redneck in a Kenworth when you need one?” Know your audience.
Locker room hyperbole? Okay. Barstool banter? Fine. Buddy’s living room repartee? Great. No one thinks you’re serious. Well, no lucid person. But on Facebook, it’s a different story. There’s evidence FB already has a bias against conservatives.
So, humorless lefties lurk, looking to take everything you say literally, so they can wreck your career and destroy your life. Public social media is not the place for cop humor, which can indeed be dark. That’s the world we work in. It’s a mechanism to retain one’s sanity and mental health. And since the radical left doesn’t care about a cop’s physical health, they sure don’t care about their mental wellbeing.
The Oregon officer mentioned above was fired after his superiors reviewed about 130 of his FB posts and found them to “show racial bias against African Americans and other minority groups.” How he meant them doesn’t matter; it’s how the reviewers interpreted them that’s important. Should it matter how he meant them? Of course. Much of the law is based on intent. But not on the left-hand side of the court of public opinion.
Remember, the left has no sense of humor. They are programmed not to find anything a conservative says to be in jest. President Trump, as a candidate, alluded to Clinton’s State Department email fiasco by taunting Russia, asking them to find Hillary’s emails, inferring they’d probably hacked her private server.
Obviously a joke, right? Not for the left. They exploited the comment by pretending to take it seriously to damage the president. Because, obviously, Trump was “colluding” with Putin, and that comment proves it.
I know what I’m talking about. Anti-cop community groups, local media, the city council, mayor, police chief, and even the head of the office of professional accountability (the person who would investigate me for over seven months) either said or inferred I was racist because I dared to oppose the city’s social justice indoctrination.
Social justice sounds so innocent, so innocuous—so “inclusive.” It’s not. It’s exclusive of all who disagree with the left’s point of view. It’s the left’s Trojan Horse. Social justice is the way they sneak in leftist indoctrination (they disguise as law enforcement training) of the city’s police officers.
Social justice, as a concept, is not universally defined by the left. In the sense that the left uses it, social justice is partisan, political, and is intended to replace equal justice. Opposing social justice, as the left defines it, is not racist, but the left treats it as if it is and attacks cops as if their definition of social justice is universal.
Some police training, even if it is initiated by the left, is legitimate. Elections have consequences. For example, some aspects of so-called restorative justice. It’s not my thing, I don’t think it helps the criminal justice system, and it’s dumb.
But, at least, it’s related to law enforcement—no leftist extrapolation needed. You know, like how they say so-called white privilege and unconscious bias negatively affects how white cops carry out their duties with minorities. That’s not training cops; that’s insulting cops.
As I also mention in De-Policing America (Wow! By now, you’d think I’d be embarrassed at all these shameless plugs of my book—available at all your finest booksellers), a black officer who went to the social justice indoctrination day camp before I did told me he called the training “hate whitey.”
I wonder how the left would have reacted if the officer had posted that comment on social media? No doubt, they’d have tried to get him fired, too. Or, at the very least, sent him back to a social justice day camp for political reeducation. Obviously, he’s a “race-traitor,” and that first round of brainwashing didn’t take.
