ASUPD has been in a tizzy regarding the posts on The Integrity Report, to the extent the department has been actively trying to find the persons responsible for creating this site. Obtaining our IP address would require a search warrant to do so, and no judge in their right mind would sign one, simply because ASUPD “doesn’t like what is being said about the department”. Remember, although we are law enforcement officers, we still have protections under the 1st Amendment which include your freedom of speech. In this post, we’ll assess how ASUPD’s policies and practices are infringing on YOUR 1st Amendment rights as a US Citizen. It’s important to note that the department CAN control what you say while you are working in the capacity of a police officer, because the speech you are making is viewed as connected to your employment.
ASUPD has created some broad, catch all policies to curtail negative things being said about them, including:
Employees of the Department shall not criticize or ridicule the Department, its policies, or other officers or employees by speech, writing, or other expression, when such speech, writing, or other expression:
1. is defamatory, obscene, or unlawful;
2. tends to interfere with or to undermine the effectiveness of the Department to
provide public services;
3. tends to interfere with the maintenance of proper discipline;
4. tends to adversely affect the confidence of the public in the integrity of the
Department and/or its officers and employees;
5. Improperly damages or impairs the reputation and efficiency of the
6. is made with reckless disregard for truth.
Let’s evaluate this policy, shall we? Nothing that has been said here on The Integrity Report is obscene, untrue, would interfere with ASU’s ability to provide public services, interfere with discipline, or recklessly disregards the truth. All of those parts of the policy are fall in line with parts of the 1st Amendment that are NOT considered to be “protected speech”.
However, the parts of the policy which seek to limit speech based on the negative impact it would have on the public’s confidence and integrity of the department, as well as the potential damage the speech would have on the department are OVERLY BROAD.
Citing Pickering v. Board of Education, 391 U.S. 563 (1968), The US Supreme Court held that an employee’s interest as a citizen in making public comment needs to be balanced against the employer’s competing interest “in promoting the efficiency of the public services it performs through its employees.” This “balancing test” will weigh in favor of the employee when the speech is made as a citizen on a matter of public concern. In 2006 the Federal Circuit court ruled in Garcetti that an employee is protected only if the speech is unconnected to employment (in addition to the balancing test established in Pickering). (Please see this article at PoliceOne for an expanded view of the aforementioned court cases).
Additionally, on Oct. 1, 2012, U.S. District Judge William W. Caldwell ruled in Beyer v. Duncannon Borough that a former police officer’s anonymous online speech was a form of protected citizen speech because he was speaking matters of formal concern.
This blogs exists as an informal mouthpiece for ASUPD’s employees to highlight areas we feel are of GREAT public concern; additionally, the anonymity of this blog separates it from any formal connection to ASUPD.
The ASUPD policy that seeks to infringe upon the 1st, and 4th Amendment rights of its employees is annotated under “Public Relations, General”. The policy states:
· When reasonable suspicion exists that the police department is being discredited by an employee through electronic media, the employee may be required to allow access to personal accounts or hardware/equipment for inspection.
The “reasonable suspicion” standard was established in O’Connor v. Ortega, which held that governmental employees are afforded 4th Amendment protections during investigations by supervisors for administrative investigations. However, this case dealt with a person’s office being searched, NOT a more intrusive search of a person’s social media accounts.
If we as police officers seize a person’s password-protected computer as evidence and the suspect refuses to consent to a search, we must obtain a search warrant to view the contents of the computer. How is requiring its officers to turn over their PASSWORD PROTECTED personal accounts any different? Especially since everything written here has been written and accessed OFF-DUTY.
As police officers, we are bound by the constraints of the Constitution in order to effectively impart justice. Our position does impose limitations on what we can/cannot say while discharging our duties as a law enforcement officer. However, we are also all private citizens who ALSO have Constitutional rights and protections, with free speech being one of those. The policies made by ASUPD that attempt to thwart free speech can NOT usurp our protections under the Constitution.
Chief, you need to have a long talk with ASU’s Legal Counsel to assess the legality of some of your policies.