By Traci I. Park and Kelly A. Trainer

With increasing frequency, litigants are seeking access to content posted on social media platforms to use as evidence in civil and criminal matters.  Given that millions of people take to social media every day to vent about the workplace, share their opinions on every issue imaginable, or to post questionable memes and photos, it is no wonder that the internet has become an evidentiary treasure trove.  It is not uncommon for online indiscretions to lead to public relations headaches, workplace discipline, and virtual impeachment in legal proceedings.

Law enforcement officers across the country are not immune from these situations. Indeed,  significant press and many published decisions address law enforcement use of social media.  For example, a Nebraska prison guard was famously fired several years ago after posting the following comment on his Facebook page: “When you work in a prison a good day is getting to smash an inmate’s face into the ground … for me today was a VERY good day.”  In 2015, a top prison aide in Baltimore was terminated following a Facebook post where he “joked” about being groped by prison guards during a site visit.  In February 2016, a Detroit police sergeant was disciplined after he called Black Lives Matter protesters “idiots” and encouraged motorists to run them over.

The consequences for exercising poor judgment online can be serious.

What About The First Amendment?

While public employees, including law enforcement officers, do have free speech rights online, such rights are not unlimited.  Courts assessing the scope of the First Amendment in public employee cases use a balancing test to assess whether the employee, as a citizen, was speaking about a matter of public concern and whether the government entity’s interest in regulating the speech outweighs the free speech rights of the employee.  (See Pickering v. Board of Education (1968) 391 U.S. 563; Connick v. Myers (1983) 461 U.S. 138).

One pioneer of questionable online behavior was a San Diego police officer who peddled sex tapes of himself (wearing a police uniform) on eBay under the username “Code3Stud.”  After a supervisor recognized Officer Stud’s profile picture, he was terminated for violating several department policies, including conduct unbecoming an officer.  He sued the City for First Amendment retaliation but ultimately lost after the United States Supreme Court unanimously concluded that his conduct was not related to a matter of public concern and was sufficiently connected to his police work.  The Court also concluded that his “speech” was designed to exploit his employer’s image and was harmful to the mission and function of the department.  (See City of San Diego v. Roe (2004) 543 U.S. 77).

Do Privacy Settings Make A Difference?

No.  According to one California court, no reasonable person who takes the affirmative act of posting information on a social media website has an expectation of privacy.  (See Moreno v. Hanford Sentinel, Inc., (2009) 172 Cal. App. 4th 1125).

In a widely-cited case, an Atlanta officer who used her Facebook page to rant about a co-worker who allegedly interfered with an arrest she had made was terminated for violating a department policy that required complaints about co-workers to go through official channels.  She sued for First Amendment retaliation and argued that she had an expectation of privacy, but the court did not credit the fact that her page was set to private.  The court specifically noted that despite the privacy setting, the comment was available for viewing by an unknown number of the officer’s “friends”, “who could potentially distribute the comment more broadly.”  The court also applied the Pickering test and noted that it is well-established that maintaining discipline and good working relationships amongst employees is a legitimate governmental interest.  Here, although there had been no actual disruption in the workplace, the court concluded that such was not necessary to a finding in favor of the Department, and the officer’s termination was upheld.  (See Gresham v. City of Atlanta (11th Cir. 2013) 542 Fed. Appx. 817).

Brady Lists and Virtual Impeachment

Pursuant to the Supreme Court’s holding in Brady v. Maryland (1963) 373 U.S. 83, which requires prosecutors to provide criminal defendants with material exculpatory evidence, California prosecutors keep running lists – known as Brady Lists – of law enforcement officers with known credibility issues that may prevent them from being effective prosecution witnesses.  An emerging question relates to officers whose testimony may be challenged due to their online conduct.  Further, even though officers cannot be disciplined simply because they are placed on a Brady List, they can be disciplined for the underlying conduct.  Once that underlying conduct is substantiated, evidence of placement on a Brady List can be used to enhance discipline.  (See Cal. Gov. Code §3305.5).

Social Media As Evidence In Litigation

In civil litigation, typically any information “reasonably calculated” to lead to the discovery of admissible evidence is permitted.  The test during discovery is simply whether it is sufficiently related to issues raised in the litigation.  More and more frequently, social media sites are becoming repositories of information that may be relevant and discoverable in legal proceedings.

However, actually obtaining the information can be a challenge.  In most cases, litigants do not voluntarily grant access to their social media accounts.  Moreover, a civil subpoena directed to the service provider will likely not yield results, due to the federal Stored Communications Act (“SCA”), which prohibits any entity, such as Facebook or Twitter, from disclosing user content (i.e., messages, timeline posts, and photos) without the consent of the owner of the account.  (See 18 USC §2702(b)(3)). There is no exception in the statute for producing this information when sought pursuant to a civil subpoena. However, there are exceptions for law enforcement in the statute, and social media sites generally do cooperate with police to produce information relevant to criminal investigations and prosecutions.

Despite the SCA, with a narrowly-tailored civil discovery request for social media evidence, a litigant can potentially get a court order for disclosure.  According to at least one California court, where the party to a communication is a party to the litigation, the trial court has the power to require the party to consent to the disclosure (thus bypassing the Stored Communications Act).  (See O’Grady v. Superior Court (2006) 139 Cal. App. 4th 1423).  Requests by the party objecting to production of the material frequently seek an in camera review by the judge to determine what is relevant prior to disclosure to the other party.

Conclusion

Law enforcement agencies should maintain clear policies pertaining to online conduct of officers that are mindful of First Amendment concerns.  This area of law is still developing, and employers need to be cautious in the drafting of these policies so as to not unlawfully infringe upon the officers’ protected activity.  Individual law enforcement officers should be trained on the risks and potential liabilities they could face for their behavior on social media.  Airing grievances, ranting about personal disputes with colleagues, or engaging in online speech that could implicate officer safety or cause discredit to the officer or department is simply a bad idea.  While law enforcement officers do have the right to use social media and engage in protected speech, the employer’s right to discipline the officer can often outweigh the officer’s First Amendment rights.

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