Balancing free speech against public trust, Seattle Police Chief Kathleen O’Toole unveiled a sweeping new social-media policy Friday that bars officers from privately posting comments that reflect negatively on the department and its ability to serve the community.
“The Seattle Police Department is working tirelessly to rebuild community trust and restore pride in our organization,” O’Toole said in a statement addressing inflammatory posts attributed to two officers. “It’s unfortunate that behavior on social media by a few has contributed to the erosion of our collective efforts.”
The issue reached a flashpoint in recent weeks over troubling Facebook postings that appeared under the name of Officer Cynthia Whitlatch, who referred to “paranoia” among blacks in the wake of August’s unrest in Ferguson, Mo., and Officer Sam Byrd, who on Twitter described social justice as racist and Mexico as a third-world “cesspool.”
Under rules that go into effect March 1, department employees may express themselves as private citizens on social-media sites, but can’t “make, share, or comment in support” of postings that contain:
Harassment, threats of violence or similar conduct.
• Language that ridicules, maligns, disparages, expresses bias, negative connotations, or disrespect toward any race, religion, sex, gender, sexual orientation, nationality or any other protected class of individuals.
• Wording that suggests that department employees are engaged in behavior “reasonably considered to be unlawful or reckless toward public safety.”
Also barred are statements that violate any law or department policy.
The policy, which had been in the works before the controversial posts, holds employees responsible for the content of their social-media accounts, including “reasonable efforts” to monitor them to ensure posts made by others on their accounts conform to the rules.
“The Department recognizes the role that social media plays in the personal lives of some Department employees,” one section reads. “However, the personal use of social media can have bearing on employees in their official capacity as they are held to a high standard by the community.”
Violations may be grounds for discipline, as well as undermine or impeach an officer’s testimony in legal proceedings, according to the policy.
Whitlatch’s postings emerged when she attracted attention last month as it was revealed she had arrested a 69-year-old black man July 9 who was carrying a golf club he used as a cane but that she viewed as a weapon. Byrd’s Twitter posts came to light shortly after.
Both officers have been placed on paid leave pending internal investigations.
O’Toole’s directive reflected her effort to blend longstanding case law on the rights of government employees with the intricate workings of social media.
As far back as 1892, the famous jurist Oliver Wendell Holmes Jr. wrote in an opinion for the Massachusetts Supreme Judicial Court that a police officer “may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.”
But the law today doesn’t take such a stark stand.
Police officers don’t forfeit their free-speech rights just because they wear a badge. But courts also have made clear that police officers and government employees don’t enjoy unfettered liberty to say whatever they want even outside the workplace.
“It’s a balance of … the officers’ First Amendment rights, particularly when they’re making statements off-duty in their personal capacity, versus the interests of the organization,” O’Toole said in an interview this week.
“Now there’s plenty of case law out there that supports us,” she said. “But we had to do that necessary research and develop the policy around that case law to ensure it will withstand a challenge.”
The president of the Seattle Police Officers’ Guild, Ron Smith, warned his members earlier this month they might be subject to discipline for what they post on social media.
In an email to roughly 1,260 officers and sergeants, Smith advised them to be “mindful” of what they posted.
“Your First Amendment rights as an American is curtailed when your speech intersects with your job as a public employee,” he wrote.
“You can read the United States Supreme Court case Garcetti V. Ceballos for further clarification of the limitations of your First Amendment rights as it pertains to your employment as a police officer,” Smith added. “Please do not let something that feels good to type cost you a few days off or your job.”
In that 2006 case, the U.S. Supreme Court found that when public employees make statements as part of their official duties, they are not speaking as citizens with First Amendment protections and can be disciplined.
Other court cases over the years have affirmed that government agencies can punish employees for speech that normally would be protected but disrupts the workplace.
Smith, in an interview Friday, said officers need to “check our political agenda at the door.”
If disparaging or offensive social-media comments can “remotely be linked” by the public to their role as police officers, it can put the department in a “bad spot,” Smith said.
Moreover, he said, Seattle officers signed up to work in a diverse city, where people off all backgrounds should be treated equally.
Those that don’t like the politics of the city or its officials may work elsewhere, Smith said.
Officers must accept that the city has the right to set policies, Smith said, adding, “We work for the taxpayers.”
Even before the recent cases, O’Toole said she first dealt with the social-media issue shortly after she took the job in June when an officer posted what she viewed as inappropriate comments regarding City Attorney Pete Holmes.
“Even though I was advised that, in that instance, I probably didn’t have any disciplinary authority to do anything … I called the officer in and had a face-to-face discussion with him,” O’Toole said. “And he was quite contrite and embarrassed.”
O’Toole said she decided then that the department needed a specific social-media policy.
A staff attorney worked with the City Attorney’s Office to draft the policy, scrubbed to ensure it will withstand constitutional challenges, O’Toole said.
Smith said he participated in the department’s conversation about the policy and is satisfied with it.
“We’ve got to get the public trust back,” he said.