Most police departments in the United States employ constitutionally questionable policies prohibiting their officers from expressing concerns publicly on social media about misconduct, according to a new study by Frank D. LoMonte, former director of the Brechner Freedom of Information Project at the University of Florida, and UF Levin College of Law alumna Jessica Terkovich.

The article, titled “’Twitter jail’ for the jailer: The precarious First Amendment rights of police officers to share workplace concerns on social media,” was published in the latest issue of the Nevada Law Journal.

Terkovich, who is now an assistant commonwealth attorney in Norfolk, Virginia, and LoMonte, who left UF in 2022 to become legal counsel at CNN and an adjunct instructor at the University of Georgia School of Law, analyzed the growing body of First Amendment caselaw adjudicating challenges to law enforcement agencies’ regulations on off-duty social media speech.

The article focuses on the Fourth Circuit’s 2016 ruling, Liverman v. City of Petersburg, in which the court declared that a police department may not forbid officers from posting “negative comments” critical of their employers, because such a rule chills officers’ ability to engage in constitutionally protected whistleblowing.

The researchers, with help from students at the Brechner FOI Project, then requested employee social media policies from the 50 largest police departments and 50 largest county sheriff’s offices in the nation. Of the 100 agencies, 12 failed to respond, and seven said they had no such policy. Of the 81 policies they reviewed, about three-quarters were on shaky ground, legally, by restricting officers’ ability to criticize their departments and publicly expose wrongdoing.

“We often see a disconnect between how the courts are interpreting the First Amendment and what government agencies are actually telling their employees,” LoMonte said. “The foundational purpose of the First Amendment is to empower people to criticize the government and advocate for change, and the Supreme Court has told us over and over that public employees don’t forfeit their right to speak out – including online – about issues of public concern.”

The authors recommend police agencies adopt policies more narrowly tailored that restrict only well-defined categories of speech that would reasonably be expected to harm the agency’s function while allowing officers to alert the public to issues of concern.

Posted: May 9, 2024
Category: Brechner News
Tagged as: Brechner FOI Project, Frank LoMonte, Gag orders, Government Gagged, Jessica Terkovich, Police, police misconduct