Online Networking, Texting and Blogging by Peace Officers

201
AELE Home Page — Publications Menu — Seminar Information
Cite as: 2010 (4) AELE Mo. L. J. 201
ISSN 1935-0007
Employment Law Section – April 2010
Online Networking, Texting and Blogging by Peace Officers
Part One – Impeachment, Policy & First Amendment Issues
Contents
• Introduction
• Courtroom testimony impairment
• Policy implications
• First Amendment considerations
• References
 Introduction
More than half of all adult Americans ages 25-35 have personal networking places on
media websites such as Digg, Facebook, Flickr®, LinkedIn®, MySpace™, Picasa™,
PoliceLink, Twitter and YouTube. [1] Wikipedia hosts a list of the more prominent site
providers. Registered users usually create a profile and often upload photographs and
videos. While some people access sites exclusively via a wired Internet point, many also
use a wireless web portal provided by their mobile phone carrier. [2]
A web blog (blog) is a continuing commentary on the Internet, [3] whereas texting refers
to the exchange of brief written messages between mobile phones and pagers using SMS
enabled cellular networks. Technorati™, an Internet search engine that searches blogs, has
indexed over a hundred million blogs and more than 250 million pieces of tagged social
media.
Police officers often possess a personal smartphone while on duty, allowing them to
access websites and chat rooms, to send and receive private e-mail, and to exchange text
messages with their friends and coworkers. PoliceOne offers its own blogs, and has links
to Cops on Line and to dedicated space on Facebook.
202
Officers have been embarrassed and disciplined for creating “inappropriate” social net
sites and sending messages with sexual, racially biased, insensitive or derogatory content.
Part One of this article addresses courtroom impeachment problems, policy implications
and First Amendment considerations. Part Two will discuss the limitations on
management’s right to monitor the content of networking sites and text messages.
 Courtroom testimony impairment
Criminal defense attorneys have challenged the credibility of police officers, have
exposed their biases, and have revealed an alleged propensity for violence because of
statements or comments found on a social network website. This danger was highlighted
in a 2009 advisory bulletin of the Los Angeles County Sheriff’s Dept.
• See Impeachment Via Social Network Websites, LASD Newsletter No. 09-07
(5/27/2009). Editor’s note: This is an important document!
A prosecution witness may be confronted on cross-examination with evidence of specific
instances of conduct concerning his or her character for truthfulness or untruthfulness.
This includes the contents of writings, recordings, or photographs that may be relevant to
witness character or credibility. [4]
The jury in the famous O. J. Simpson murder trial was told of a racist remark made by a
controversial homicide detective. [5] More recently, a firearms expert witness
purportedly was disqualified from testifying in an officer-involved shooting because of
extremist remarks he made on a website. [6]
 Policy implications
A prominent law firm has noted that social media now permeates the entire life cycle of
employment: during pre-employment inquiries, throughout the period of employment,
and after separation from employment. Employers must fully consider the use and misuse
of social media at each stage. The firm warned that employers that ignore the dangers of
social media in the workplace risk legal liability and embarrassment. [7]
The fact that an employee’s writings appear on an Internet profile does not mean that the
conduct is private. As the armed forces appellate court has noted, an Internet profile “is
the modern equivalent of standing on a street corner in uniform with a sign saying ‘I’m in
203
the Army and I am a racist and Aryan extremist.’” U.S. v. Wilcox, #05-0159, 66 M.J.
442, 2008 CAAF Lexis 1216 (2008).
Public safety agencies should have a written policy on social networking, blogging, email
and texting. Some of the areas that need to be addressed include the following:
1. A warning that misuse of electronic media will be grounds for disciplinary action,
including termination.
2. A prohibition of the use of the agency’s name, logo, patch, badge, marked vehicles
and other identifying symbols. Consider registering indicia as official trademarks.
3. A prohibition against posting one’s photograph while wearing the agency’s
official uniform (or in a similar attire, which could be misidentified as the official
uniform).
4. A ban on the disclosure of the agency’s confidential or proprietary information.
5. A rule that employees must not surf, post, text or blog during duty hours, unless
for agency purposes. (List and illustrate any exceptions).
6. A prohibition against using agency e-mail addresses to register for or to respond to
social media sites.
7. A rule requiring all employees who maintain a blog, or who reply to blogs that
identify the agency must identify themselves, and include a disclaimer that their
viewpoints are personal, private, and do not necessarily reflect the position of the
agency.
8. A policy that encourages employees to voluntarily refer work-related complaints
to their supervisors or the [agency’s personnel office] before blogging or posting
about such complaints.
9. A prohibition against knowingly or recklessly posting false information about the
agency, superiors, coworkers, public officials and others who have a relationship
to or with the agency. This should include the wrongful disparagement of
fictitious characters that resemble known personnel or officials.
10. Exceptions to the agency’s electronic media policies must be approved, in
writing, by the chief of the agency or designated subordinates.
In a 2009 presentation at the IACP annual conference, Orlando attorney Jody Litchford
offered “Policy and practice tips for employers.” See Employment Issues Related to
Electronic Communications at pp. 3-4, which is posted on the AELE website.
204
She advised that management should encourage employees to “interact positively” with
an employer’s social networking site, and to have policies in place that ensure that the
agency’s reputation is enhanced.
Most governmental entities now have written policies on electronic messaging. The IACP
issued a Model Policy on Electronic Messaging (2002) and another on Cellular
Telephones (2003).
The IACP’s e-messaging policy applies to “all media which are:
a. Accessed on or from departmental premises;
b. Accessed using department computer equipment or department paid access
methods;
c. Communications that make reference to the department in a manner; and/or
d. Used in a manner that identifies the employee with the department.”
It admonishes that “no e-mail or other electronic communications may be sent that
attempts to hide the identity of the sender or represents the sender as someone else or
someone from another agency.”
The IACP’s cell phone policy states that the use of personal cellular phones either in
voice or data transmission while on duty should be restricted to essential communications
and should be limited in length. “Engagement in multiple or extended conversations
unrelated to police business or similar use that interferes with the performance of duty is
prohibited.” It also requires officers to provide their mobile numbers to their supervisors.
• Social media attributes and capabilities expand frequently. An agency’s
policies must be fluid and continually adapt to changes in cyberspace.
Neither of the IACP’s policies address social media websites directly. Facebook was not
launched until 2004, the same year that MySpace™ transitioned from a virtual storage site
to a social networking site. The two IACP Model Policies were published before 2004.
• AELE has collected a few specimen policies that address the use of social
media by law enforcement and military personnel.
Specimen social networking policies (opens a new menu)
205
The Brook Park policy provides that no employee shall represent himself in any public
forum as a department member in any manner that “reflects a lack of good moral
character,” whatever that means! There is nothing wrong with saying that, but it is hard to
prove in court.
Brook Park very properly prohibits the posting, transmission or dissemination of any
pictures or videos of official department training, activities, or work-related assignments
without the express written permission of the chief of police.
Brook Park officers may not post photos of, or comments made by other department
employees without their approval. Additionally, employees are warned not to “gossip
about the affairs of the department with persons outside of the department,” although that
raises some First Amendment issues.
The policy ends by reminding employees to consider “the possible adverse consequences
of internet postings, such as future employment, cross-examination in criminal cases, and
public as well as private embarrassment.”
 First Amendment considerations
The First Amendment protects the content of public employee speech, provided they
speak as a private citizen. Specifically:
1. The Constitution does not protect work-related gripes, and has not since 1983. [8]
2. The content of the speech must address a matter of public concern.
3. Since 2006, the reason for the “speech” must be outside the duties and
responsibilities of the public employee.
4. Even if the content of the speech is protected, the employee’s interests in the
speech must outweigh the employer’s interest in promoting efficient operations. A
public employer need not allow events to unfold that would disrupt the workplace
and impair working relationships. [9]
In a 5-to-4 decision, the Supreme Court rejected the claims of a deputy district attorney
who had criticized a case handled by his office. The majority found that because his
statements were made as a public employee, and not as a private citizen, his speech
lacked any First Amendment protection. Garcetti v. Ceballos, #04-473, 547 U.S. 410,
126 S.Ct. 1951 (2006).
It is beyond the scope of this article to discuss the First Amendment nuances of this
important decision. An excellent article was written by the chief of the Legal Instruction
Unit at the FBI Academy, which we urge you to read and save on your computer:
206
• Speech and the Public Employee, by Lisa Baker, FBI Law Enforcement
Bulletin (Aug. 2008).
One of the more debated cases involved Lexington, Kentucky, police officer Joshua
Cromer, who was fired for comments in his MySpace™ webpage. Following his DUI
arrest of celebrity country singer John Michael Montgomery, the officer’s troubles began.
He was charged with conduct unbecoming an officer:
“On or about March 20, 2006, Officer Cromer, identifying himself as a Lexington Police
Officer through word and image, posted, or allowed to remain posted, to web site
MySpace.com language and/or images that reflected discredit upon Officer Cromer as a
member of the Division of Police, brought the Division into disrepute, and impaired the
operation and efficiency of himself and the Division. Such postings include profane
language; inappropriate or derogatory comments or images concerning homosexuals and
the mentally disabled; inappropriate or derogatory comments about the people and/or the
city of Lexington; inappropriate comments concerning the use of force; an entry
concerning the use of his authority for his own benefit related to a car alarm that was
annoying him; the use of his authority for the benefit of a friend by not arresting the
friend for DUI; inappropriate sexual comments; and an altered photograph depicting him
with John Michael Montgomery after he had arrested Mr. Montgomery for DUI.” [10]
The city council discharged officer Cromer and the trial court confirmed his termination.
The Court of Appeals affirmed, noting that the record did not support an allegation that
he received a harsher treatment than was warranted under the circumstances. “Rather, the
record aptly supports the Council’s decision to terminate Cromer for misconduct,
inefficiency, and insubordination.” Cromer v. Lexington-Fayette Urban Co. Govt.,
#20088-CA-000698, 2009 Ky. App. Unpub. Lexis 71. [11]
Notes:
1. Social Networks Grow, Pew Internet & American Life Project (Jan. 14, 2009).
2. “In addition to the standard voice function, current mobile phones may support many
additional services, and accessories, such as SMS for text messaging, email, packet
switching for access to the Internet, gaming, Bluetooth, infrared, camera with video
recorder and MMS for sending and receiving photos and video, MP3 player, radio and
GPS.” Wikipedia, Mobile phone.
3. Blog is an abbreviation of the phrase web log. It is an online journal in the
blogosphere. Blogs are characterized by minimal barriers to entry, the lack of an
editorial process, the absence of permanent content archiving, and anonymous posting
207
capabilities. An employee who is terminated for blogging is said to have been
“dooced,” a term coined by Heather Armstrong, who in 2002, was fired for her web
journal entries at dooce.com. Sources: 44 Hous. L. Rev. 777 at fn. 19 (2007) and the
Urban Dictionary.
4. Federal Rules of Evidence, Rules 401, 404, 608 & 1007.
5. Evidentiary order in People v. Orenthal James Simpson, # BA097211, Los Angeles
County Super. Ct. (31 Aug. 1995), concerning a racial utterance by [then] police
detective Mark Fuhrman.
6. Law Update for Border Patrol Agents & Customs & Border Protection Officers (S.D.
Calif., Nov. 2009).
7. Nixon Peabody, Employment law alert, “Social media and the workplace: what every
employer should know.” (11/13/2009).
8. Connick v. Myers, #81-1251, 461 U.S. 138 (1983).
9. Connick, 461 U.S. at 152.
10. Official Minutes, Council of the Lexington-Fayette Urban County Government,
Special Session, Feb. 20, 2007.
11. A parallel action was filed in federal court and is pending. Cromer v. Lexington-
Fayette Urban Co. Govt., #507-cv-00256, interim order (E.D. Ky. 2009). Several
other Lexington police officers received suspensions for their online remarks.
 References
A. Books, articles and model policies (alphabetical)
1. Cellular Telephones, IACP Model Policy (2003).
2. Electronic Messaging, IACP Model Policy (2002).
3. Employment Issues Related to Electronic Communications, by Jody Litchford, City of
Orlando, FL. IACP Legal Officers Section Annual Conference (Oct. 2009).
4. [A] Law Enforcement Officer’s Freedom of Speech Rights, Ch. 7, pp. 303-340 in The
Rights of Law Enforcement Officers, (6th edit. 2009) by Will Aitchison, LRIS
Publications.
5. Nudging Privacy: The Behavioral Economics of Personal Information, by Alessandro
Acquisti, 7 (6) IEEE Security & Privacy 82 (Nov-Dec. 2009).
208
6. Personal Relationships in the Workplace: Nepotism and Employee Fraternization,
IACP Concepts and Issues Paper (Jul. 2009).
7. [A] Privacy Paradox: Social Networking in the United States, by Susan B. Barnes, 11
(9) First Monday (Sep. 2006).
8. Speech and the Public Employee, by Lisa Baker, 77 (8) FBI Law Enforcement
Bulletin 23 (Aug. 2008).
9. Watch What You Post, by Dean Scoville, 33 (12) Police 36 (Dec. 2009).
10. What Anyone Can Know: The Privacy Risks of Social Networking Sites, by David
Rosenblum, 5 (3) IEEE Security & Privacy 40 (May-Jun. 2007).
B. Law review articles (alphabetical)
1. Constraining Public Employee Speech: Government’s Control of its Workers’ Speech
to Protect its Own Expression, by Helen Norton, 59 Duke L.J. 1 (Oct. 2009).
2. Electronic Discovery Bibliography, by Paul Richert, 42 Akron L. Rev. 419 (2009).
3. [The] Electronic Workplace: To Live Outside the Law You Must Be Honest, by
William A. Herbert, 12 (1) Empl. Rts. & Employ. Pol’y J. 49-104, Chicago-Kent
Coll. of Law (2008).
4. Emerging Technology and Employee Privacy, Symposium: Rethinking Information
Privacy in an Age of Online Transparency, by Robert Sprague, 25 Hofstra Lab. &
Emp. L.J. 395 (Spring, 2008).
5. Fired for Blogging: Are There Legal Protections for Employees Who Blog?, by
Robert Sprague, 9 U. Pa. J. Lab. & Emp. L. 355 (Winter, 2007).
6. Industrial Justice: Privacy Protection for the Employed, by Ariana R. Levinson, 18
Cornell J. L. & Pub. Pol’y 609 (Summer, 2009).
7. [The] Military, Freedom of Speech, and the Internet: Preserving Operational Security
and Servicemembers’ Right of Free Speech, Note, by Danley K. Cornyn, 87 Tex. L.
Rev. 463 (Dec. 2008).
8. MySpace or Yours: The Abridgement of the Blogosphere at the Hands of At-will
Employment, Comment, by Bijal J. Patel, 44 Hous. L. Rev. 777 (Fall, 2007).
9. Networked Activism, Molly Beutz Land, 22 Harv. Hum. Rts. J. 205 (Summer, 2009).
10. [The] Newest Way to Screen Job Applicants: A Social Networker’s Nightmare, Note,
by Carly Brandenburg, 60 Fed. Comm. L.J. 597 (Jun. 2008).
209
11. Poised on the Precipice: A Critical Examination of Privacy Litigation, by Andrew B.
Serwin, 25 Santa Clara Computer & High Tech. L.J. 883 (Apr. 2009).
12. [A] Social Networks Theory of Privacy, Lior Jacob Strahilevitz, 72 U. Chi. L. Rev.
919 (2005). Abstract.
13. Think Twice Before You Type: Blogging Your Way to Unemployment, Note, by
Scott R. Grubman, 42 Ga. L. Rev. 615 (Winter, 2008).
14. [The] Tort of Wrongful Discipline in Violation of Public Policy – Proposed
Restatement of Employment Law, by Joseph R. Grodin, et al., 13 (1) Empl. Rts. &
Employ. Pol’y J. 159, Chicago-Kent Coll. of Law (2009). Abstract.
15. “You Got Fired? On Your Day Off?!” Challenging Termination of Employees for
Personal Blogging Practices, Note, by Aaron Kirkland, 75 (2) UMKC L. Rev. 545,
Univ. of Mo. at Kansas City (Winter, 2006).
AELE Monthly Law Journal
Wayne W. Schmidt
Employment Law Editor
P.O. Box 75401
Chicago, IL 60675-5401 USA
E-mail: wws@aele.org
Tel. 1-800-763-2802
© 2010, by the AELE Law Enforcement Legal Center
Contents may be downloaded, stored, printed or copied,
but may not be republished for commercial purposes.
• The purpose of this publication is to provide short articles to acquaint the reader
with selected case law on a topic. Articles are typically six to ten pages long. Because of
the brevity, the discussion cannot cover every aspect of a subject.
• The law sometimes differs between federal circuits, between states, and sometimes
between appellate districts in the same state. AELE Law Journal articles should not be
considered as “legal advice.” Lawyers often disagree as to the meaning of a case or its
application to a set of facts.
AELE Home Page — Publications Menu — Seminar Information

Advertisements

3 Comments (+add yours?)

  1. Computer Accessories
    Oct 26, 2010 @ 23:11:31

    Please note that you can’t port a contract mobile number to a contract on the same network. Computer Accessories

    Reply

  2. Trackback: Online Networking, Texting and Blogging by Peace Officers … | www.wigont.com
  3. viaga kaufen
    Oct 30, 2010 @ 08:13:19

    In searching for sites related to web hosting and specifically comparison hosting linux plan web,
    your site came up.
    You are a very smart person!

    Reply

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: