Does The Philly Fire Dept’s Social Media Policy Violate The First Amendment?
Earlier this week, the Philadelphia Fire Department — following in the footsteps of the Philadelphia Police Department — released a new social media policy that applies to their employees. (Policy here, Inquirer story here.) The policy is, in a word, “no.”
The policy has a number of limits on the use of social media while firefighters are on the job, and on off-duty communication of threatening and harassing materials. Whether or not that’s the right policy, it’s rational, and connected to normal limitations on employee’s use of employer’s equipment and time on-the-job.
But the Philly FD policy goes much further:
Employees shall not identify themselves as a member of the Philadelphia Fire Department on any Social Media and Networking site without prior approval of the Fire Commissioner. The only exception will be a professional networking site (e.g. LinkedIn). Postings will only pertain to professional networking and development.
Employees shall not post any material on the internet or via electronic transmission that may adversely affect the efficiency or effective operation of the department.
Employees shall not post on any Social Media site or electronically transmit any information that is inconsistent with the duties, ethics and Oath of Office of a firefighter or paramedic, such as racist or sexist comments, inaccurate information, personal attacks, or rumors.
Employees shall not post any information or images involving off-duty activities that may bring a member’s or the department’s reputation into question.
Employees are prohibited from posting on any Social Media site or electronically transmitting any information regarding a Fire Department incident, ongoing investigation, or pending litigation (both criminal and civil actions).
All of those limitations raise serious legal questions.
Let’s start with the basics: if a private employer subject to National Labor Relations Board’s jurisdiction imposed any of those conditions, they would likely be deemed unlawful as a violation of the National Labor Relations Act. As Poynter explains in the context of news organizations, the NLRB has been cracking down on employers that sneak into their social media policies limitations on the employee’s ability to discuss the terms and conditions of their employment. As a memo from the NLRB general counsel (PDF) in late May 2012 described, instructions that an employee not “release confidential guest, team member or company information,” or ensure their posts are “completely accurate and not misleading,” or refrain from “[o]ffensive, demeaning, abusive or inappropriate remarks” have all been held by the NLRB to be unlawful.
The Philadelphia Police Department and Fire Department are both state governmental employers, so the NLRA doesn’t apply. Instead, the Pennsylvania Labor Relations Act, which is largely an imitation of the NLRA (see City of Philadelphia v. Int’l Ass’n of Firefighters, 999 A.2d 555 (Pa. 2010)) applies, and to my knowledge the Pennsylvania Labor Relations Board hasn’t had a chance to adopt or reject the same rights. Here we’ll give the powers that be in the City the benefit of the doubt and assume the NLRB rules don’t apply. Do the limitations violate the First Amendment?
There are two Supreme Court cases you need to know: Connick v. Myers, 461 U. S. 138, 142 (1983), which held that “a State cannot condition public employment on a basis that infringes the employee’s constitutionally protected interest in freedom of expression,” and Garcetti v. Ceballos, 547 U.S. 410 (2006), which rejected “the notion that the First Amendment shields from discipline the expressions employees make pursuant to their professional duties.” In other words, firefighters and police officers enjoy First Amendment protections for speech they make as citizens, but not for speech made as part of their job duties. Complicating matters further, the Connick protections only apply where the expressions in question were made by the speaker “as a citizen upon matters of public concern.” Thus, the protection applies to speech made on matters of public concern, which can obviously include firefighters’ and police officers’ jobs, but not the speech made within their jobs.
You can see the interplay of these two principles in a case decided earlier this year in New York, Monz v. Rocky Point Fire District, in which the federal court for eastern New York held that a firefighter’s public lobbying for stricter alcohol regulations was protected speech while his internal complaints about other firefighters defacing a Commissioner’s election poster inside a firehouse was not protected speech. By and large, courts since Garcetti have generally tried to be protective of speech by public employees. For example:
- Andrew v. Clark, 561 F.3d 261, 268-69 (4th Cir.2009) (indicating, in the context of reversing the grant of a motion to dismiss, that former police commander’s releasing to a newspaper an internal memorandum on a matter of public concern involved protected speech, even though the memorandum discussed whether the commander had properly performed his job in connection with a police shooting);
- Thomas v. City of Blanchard, 548 F.3d 1317, 1323-24 (10th Cir.2008) (holding that when city building code inspector went beyond complaining to his supervisors about an impropriety in issuing a certificate of occupancy to the mayor, and threatened to report to a state investigative agency outside his chain of command, his speech ceased to be merely pursuant to his official duties and became the speech of a concerned citizen);
- Davis v. McKinney, 518 F.3d 304, 313 (5th Cir.2008) (surveying post-Garcetti case law and concluding that complaints raised up the chain-of-command in a public workplace are often viewed as being pursuant to one’s job duties while “external communications” in which a public employee raises concerns to persons outside the workplace are “ordinarily not made as an employee, but as a citizen”)
In the Third Circuit, which includes Pennsylvania, the test is based on Hill v. Borough of Kutztown, 455 F.3d 225, 241 (3d Cir. 2006), which created a three-factor test:
A public employee’s statement is protected activity when (1) in making it, the employee spoke as a citizen, (2) the statement involved a matter of public concern, and (3) the government employer did not have an adequate justification for treating the employee differently from any other member of the general public as a result of the statement he made.
All in all, I think the Philadelphia Fire Department’s policy has a number of serious problems — they might be able to discipline officers who, say, tweet pictures of themselves drinking in a fire engine, but, if the goal of this new policy was to silence criticism of issues affecting the fire department, they have a problem on their hands. So long as the speech is made outside of the firefighters’ official duties, preferably off-duty and as a private citizen, and it involves a matter of public concern, the Department is going to have a problem enforcing the new policy.
[Update: The Metro suspects that the policy was prompted by tweets from the union's Twitter account, and compiles some of the tweets in question. If a firefighter goes home after work, logs into the union's @IAFF22 Twitter account, and sends out a tweet on a matter of public concern, I think the administration is going to have a serious problem trying to discipline them. In my humble opinion, posting to the union Twitter account is obviously not part of their official duties, and so there is no Garcetti problem.]