Labor & Employment – City Social Media Policy Violated First Amendment

Liverman v. City of Petersburg (Lawyers Weekly No. 001-182-16, 26 pp.) (Wilkinson, J.) No. 15-2207, Dec. 15, 2016; USDC at Richmond, Va. (Spencer, J.) 4th Cir.

Holding: Reversing a district court, the 4th Circuit says a city violated a police officer’s First Amendment rights when it disciplined him under a social media policy prohibiting “Negative Comments” for Facebook comments about the dangers of premature promotion of inexperienced police officers; the police chief does not have qualified immunity from the suit, and the district court should reconsider possible municipal liability.

Public Concern

The district court granted summary judgment to Officer Liverman on his challenge to the social networking policy, but denied Officer Richards’ parallel claim on the grounds that his speech was not protected by the First Amendment. We hold that the department’s social networking policy is unconstitutionally overbroad and award judgment to Richards on his claim as well.

The threshold question in this case is whether the department’s policy regulates officers’ rights to speak on matters of public concern. There can be no doubt that it does: the restraint is a virtual blanket prohibition on all speech critical of the government employer. The explicit terms of the Negative Comments Provision prevent plaintiffs and any other officer from making unfavorable comments on the operations and policies of the department, arguably the paradigmatic matter of public concern.

We note the astonishing breadth of the social networking policy’s language. The policy seeks to prohibit the dissemination of any information on social media that “would tend to discredit or reflect unfavorably upon” the police department. The “Negative Comments Provision” proscribes negative comments on the internal operations of the bureau – which could be just about anything – or on the specific conduct of supervisors or peers – which could be just about anything.

‘Speculative Ills’

The department fails to satisfy its burden of demonstrating actual disruption to its mission. Apart from generalized allegations of budding “divisiveness” and claims that some patrol officers sought shift transfers, the police chief presents no evidence of any material disruption arising from plaintiffs’ – or any other officer’s – comments on social media. The speculative ills targeted by the social networking policy are not sufficient to justify such sweeping restrictions on officers’ freedom to debate matters of public concern.

We agree with plaintiffs that the district court erred in dismissing their challenges to the department’s disciplinary actions against them. The form and context of the comments indicate plaintiffs did in fact speak on an issue of public concern. The context of the speech buttresses our conclusion that plaintiffs were not simply airing personal grievances but rather were joining an ongoing public debate about the propriety of elevating inexperienced police officers to supervisory roles.

We have no trouble finding that plaintiffs’ Facebook comments, which addressed risks posed by the department’s inexperienced supervisors, raised issues of public concern. The police chief failed to establish a reasonable apprehension that plaintiffs’ social media comments would meaningfully impair the efficiency of the workplace.

Defendants do not seriously dispute that plaintiffs’ Facebook comments were a substantial factor in the decision to discipline them; both disciplinary action forms cited violations of the Negative Comments Provision as the sole basis for the oral reprimand and probation.

Qualified Immunity

Defendant police chief is not entitled to qualified immunity. We cannot countenance an arm of government with such enormous powers being removed to this extent from public scrutiny. The department’s social networking policy and the disciplinary actions taken to enforce it lean too far to one side. We hold the chief is not entitled to qualified immunity.

However, we agree with the district court that plaintiffs’ retaliation claims are without merit. Plaintiffs argue the retaliation took the form of investigating their conduct on the force. There were independent bases for each investigation. Liverman was investigated twice. The department discovered Liverman had sent sexually explicit emails to a female officer, and launched an investigation for sexual harassment. During that investigation, Liverman admitted to engaging in sexual misconduct on department property and while on duty. Liverman also was investigated for an incident in which he ignored the chief’s order and failed to maintain his duty post as directed.

Richards also was investigated twice, both times as a result of complaints initiated not by the police chief, but by his fellow officers. The first complaint related to a report Richards allegedly made to the media about another officer’s spouse. The second complaint arose from Richards’ involvement with the department’s Shop with a Cop program. The department determined the complaints were unfounded.

As to plaintiffs’ claims against the city, we remand to give the district court a chance to assess under the appropriate standard municipal liability for establishing the policy under which plaintiffs were disciplined. The district court should undertake a more particularized inquiry into whether the chief possessed final authority to set policies on the parameters of speech on the part of the law enforcement officers under his command.

Affirmed in part, reversed in part and remanded.