The particular attributes of social media fit comfortably within the existing balancing inquiry [under the Pickering v. Board of Ed. (1968) test]: A social media platform amplifies the distribution of the speaker’s message — which favors the employee’s free speech interests — but also increases the potential, in some cases exponentially, for departmental disruption, thereby favoring the employer’s interest in efficiency. What matters to the First Amendment analysis is not only the medium of the speech, but the scope and content of the restriction.
Here we deal with a broad social networking policy setting forth the parameters of public employee speech. In United States v. Nat’l Treasury Employees Union(1995), the Supreme Court … held that “the Government’s burden is greater with respect to this statutory restriction on expression than with respect to [the] isolated disciplinary action[s]” in Pickering and its progeny. Accordingly, “[t]he Government must show that the interests of both potential audiences and a vast group of present and future employees in a broad range of present and future expression are outweighed by that expression’s ‘necessary impact on the actual operation’ of the Government.” Further, the government “must demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way.” …
We begin by noting the astonishing breadth of the social networking policy’s language. The policy seeks to prohibit the dissemination of any information on social media “that would tend to discredit or reflect unfavorably upon the [Department].” In particular, the Negative Comments Provision proscribes “[n]egative comments on the internal operations of the Bureau” — which could be just about anything — or on the “specific conduct of supervisors or peers” — which, again, could be just about anything.
The interests of “present and future employees” and their “potential audiences” in such speech is manifestly significant. We do not, of course, discount the capacity of social media to amplify expressions of rancor and vitriol, with all its potential disruption of workplace relationships that Connick v. Myers (1983) condemned. But social networking sites like Facebook have also emerged as a hub for sharing information and opinions with one’s larger community.
And the speech prohibited by the policy might affect the public interest in any number of ways, including whether the Department is enforcing the law in an effective and diligent manner, or whether it is doing so in a way that is just and evenhanded to all concerned. The Department’s law enforcement policies could well become a matter of constructive public debate and dialogue between law enforcement officers and those whose safety they are sworn to protect. After all, “[g]overnment employees are often in the best position to know what ails the agencies for which they work.” But this policy will cut short all of that. …
Because the Department’s social networking policy unmistakably imposes a significant burden on expressive activity, we next consider whether the Department has adequately established “real, not merely conjectural” harms to its operations. Chief Dixon’s primary contention is that divisive social media use undermines the Department’s interests in maintaining camaraderie among patrol officers and building community trust.
These are, to be sure, legitimate interests. “When close working relationships are essential to fulfilling public responsibilities, a wide degree of deference to the employer’s judgment is appropriate.” And such deference applies with special force to police departments because they are “paramilitary — discipline is demanded, and freedom must be correspondingly denied.”
Here, however, the Department fails to satisfy its burden of demonstrating actual disruption to its mission. Apart from generalized allegations of budding “divisiveness” and claims that some “patrol officers sought [shift] transfers,” Chief Dixon presented no evidence of any material disruption arising from plaintiffs’ — or any other officer’s — comments on social media.
We do not deny that officers’ social media use might present some potential for division within the ranks, particularly given the broad audience on Facebook. But the speculative ills targeted by the social networking policy are not sufficient to justify such sweeping restrictions on officers’ freedom to debate matters of public concern.
Defendants’ fallback argument is that, even if the Negative Comments Provision itself is overbroad, the Public Concern Provision significantly narrows the reach of the social networking policy. This second provision, which permits comments on “issues of general or public concern … so long as the comments do not disrupt the workforce,” is ostensibly more aligned with the case-by-case analysis of Connick and Pickering.
But the milder language in a single provision does not salvage the unacceptable overbreadth of the social networking policy taken as a whole. Indeed, the Public Concern Provision does not purport to nullify or otherwise supersede the blanket censorship endorsed by the Negative Comments Provision. If the Department wishes to pursue a narrower social media policy, then it can craft a regulation that does not have the chilling effects on speech that the Supreme Court deplored. We cannot, however, allow the current policy to survive as a management and disciplinary mechanism.