1. Expressive Speech and the Law Enforcement Officer IACP Legal Officers Section 2003

2. The Expressive Employee

3. Exercise Facts: Smith is employed as a police officer and works as a computer technician. On at least two occasions he anonymously mailed from his home anti-black and anti-semitic statements in return envelopes. The materials were referred for investigation to a neighboring police department who determined that Smith was the source. Smith was charged with violation of a internal rule and at his hearing asserted that the mailings were a form of protest. What would your ruling be? What is your justification for your ruling?

4. 1 st Amendment “Congress shall make no law... Abridging the freedom of speech; or the right of people peaceably to assemble, and to petition the government for a redress of grievances.”

5. Unprotected Limited Protection Highly Protected Types of Expression / Relation to Governmental Restrictions Obscenity Threats bodily harm PolicpPolicp Political speech Protection From Governmental Restriction Expression in Gov’t workplace

6. True Threat True threat (Order to Disperse)  Those forms of intimidation designed to inspire fear of bodily harm.  Thus just as a State may regulate only that obscenity which is the most obscene due to its prurient content, so too may a State choose to prohibit only those forms of intimidation that are most likely to inspire fear of bodily harm.” Virginia at 123 S.Ct. 1536 (2003)

7. The Boundaries Police Military Freedom of Expression _ + Civilian Efficient Performance of Governmental Service + _ Free Trade of Ideas

8. Military The military need not encourage debate or tolerate protest to the extent that such tolerance is required of the civilian state by the First Amendment; to accomplish its mission the military must foster instinctive obedience, unity, commitment, and esprit de corps. Goldman v. Weinberger, 106 S.Ct. 1310

9. Civilian Civilian / Public Forum Restriction of Content subject to strict scrutiny The means chosen (governmental restriction) must be strictly tailored to promote a compelling governmental interest.

10. Accommodation of Civilian Expression in Public Forum "These later decisions have fashioned the principle that the constitutional guarantees of free speech... do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." Brandenburg 89 S.Ct 1827

11. The Police Officer and Expression Within the Workplace Police Officers Speech Private Concern Public Concern Officer does not lose his/her 1 st Amendment right to comment on matters of pubic concern by virtue of being employed by the government

12. Competing Interests Pickering Test Interests of employee as a citizen in commenting on matters of public concern Interests of State, as an employer, in promoting public Services it performs through its employees

13. Competing Interests Pickering Test/Rationale The test allows the government a degree of control over its employees to permit it to provide services efficiently and effectively Ensures that public employers do not use their authority to silence discourse, not because it hampers public functions, but simply because superiors disagree with the content of the speech

14. Public and Private Concerns The Public Concern Two Step Test Does the speech involve a matter of public concern? “Whether an employee’s speech addresses a matter of public concern must be determined by the content, form, and the context of a given statement, as revealed by the whole record”

15. Matter of Public concern Any matter of political, social, or other concern to the community

16. Examples of Private and Public Concerns Private Questionnaire regarding office transfer policy. Connick 103 S.Ct. 1684 Personal Complaints about internal working conditions. Tang 163 F.3d 7(1 st Cir 1998) Change in an employee’s duties. U.S v. Nat’l Treasury Union, 115 S.Ct 1003 Employee speech which transpires entirely off duty or in non-work areas of the office.

17. Examples of Public Concerns Report critical of employer’s policies Police commissioners criticism of police department Personnel director’s truthful testimony before state senate committee Legal aid attorney’s criticism of supervisor’s policies.

18. Problem Fact specific Unless the speech is a clear example of an expression of a private concern – it is best to treat that speech as a public concern and be prepared to demonstrate that it impaired the effectiveness of the Department. Warning

19. Why the 1 st step is problematical Preparation for retaliation claim / Mixed Content Elements Private or Public Adversely affect efficiency of workplace The protected speech was a substantial or motivating factor in the adverse action.  Banks v. Wolfe, 330 F.3d 888(6 th Cir. 2003)

20. 2 nd Step Even if speech is a mater of public concern, then the government must show that the speech so threatens the government’s effective operation that discipline of the employee is justified

21. Effective Operation of the Workplace Does the Speech harm the effective functioning of employer’s enterprise?

22. Harm to Effective Operation of the Department  When and where were the statements made?  What is the employee’s assignment?  Does the employee occupy a position of rank?  Is the employee in a supervisory or policy making role?  Did the statement actually effect the ability to operate or only place it in jeopardy?  Did it engender mistrust in the community?

23. Assessing the Employers Legitimate Interest in Discipline Workplace efficiency Impairs discipline by superiors Disrupts harmony amongst Co-workers Breach of Confidence loyalty Impedes speaker’s performance Public trust

24. Public Trust “The effectiveness of a city’s police department depends on the perception in the community that it enforces the law fairly, even- handedly, and without bias... If the department treats a segment of the population of any race, religion, gender, national origin, sexual preference, etc., with contempt, so that the particular minority comes to regard the police as oppressor rather than protector, respect for law enforcement is eroded and the ability of the police to do its work in the community is impaired.”  Papps v. Giuliani, 290 F.3d 143(2 nd Cir.2002)

25. A policeman may have a constitutional right to speak his mind but he has no constitutional right to be a police man. McAuliffe v. Mayor of New Bedford 29 N.E. 517(1892)