Over the last several years, the National Labor Relations
Act has driven much of the discussion around the legalities of social
networking policies. Since 2011, for example, the NLRB’s Office of
General Counsel has issued three
reports concerning employer social media policies, all of which emphasize
the importance of drafting social media policies narrowly so as not to infringe
on activities protected under the NLRA. For municipalities and other
public employers, however, an equally important consideration when preparing
and enforcing social media policies is the First Amendment.
Social Media Policy in the City of Petersburg
As a case in point, the Fourth Circuit Court of Appeals
recently held in Liverman v.
City of Petersburg that a city’s social media policy was overbroad
under the First Amendment where it prohibited in “sweeping terms” the
dissemination of any information that had a tendency to discredit or reflect
unfavorably on the city or its employees. The policy applied to the
city’s police department and prohibited officers from making “negative
comments” on the operations of the department, which the policy explained did not
constitute protected speech. Another provision prohibited officers from
making comments online that “disrupted the workforce” and further discouraged
officers from posting any information about their off-duty activities. The policy explained that violations of the policy would be judged on a
case-by-case basis.
At issue in the case was a Facebook exchange between two
officers while off-duty, which criticized the way rookie cops were being
promoted to instructors based on special interests rather than experience. After the learning of the exchange, the department disciplined the officers for
violating the social media policy. The discipline ultimately made the
officers ineligible for promotion to open sergeant positions. The
officers subsequently sued and claimed that the city’s social media policy
infringed on their free speech rights.
The Fourth Circuit found that although social media presents
novel issues, it is the scope and restriction on speech that matters under the
First Amendment – not the medium of the speech. Here, the court found
that there was no doubt that the social media policy regulated the officers’
rights to speak on matters of public concern, as it was effectively a “blanket
prohibition on all speech critical of the government employer.” Because
the policy imposed a significant burden on expressive activity, the court
looked to whether it was justified by real, not merely conjectural harms to the
department’s operations. The court acknowledged that divisive social
media use had the potential to undermine the department’s interest in
maintaining camaraderie among officers and trust within the community, but it
nonetheless found that these concerns were too speculative to justify the
policy’s sweeping restrictions and chilling effect on protected
speech. Having found the policy itself unconstitutionally
overbroad, the court turned to the officers’ discipline and found that it, too,
was unconstitutional. The court found the officers’ posts dealt
with issues of public import and were not merely personal grievances.
According to the court, whether the officers were correct in their views was
not the issue, because the issue they addressed in their posts – i.e. the
risks posed by inexperienced supervisors – was a matter of public concern.
For municipalities, this decision highlights the need to
consider the restrictions contained in social media policies and the potential
chilling effect of those restrictions on protected speech (and, similarly, the
exercise of rights under the NLRA). Wherever possible, municipalities
should avoid restrictions that are ambiguous, vague, or susceptible to
interpretation, as they are more likely to be viewed as unlawfully
overbroad. Municipalities can further reduce that risk by providing
examples of the specific conduct prohibited under the policy. Although
doing so provides no guarantee, it is more likely to result in a narrowly
tailored policy that avoids running afoul of the law.
