Policy Analysis: Free Speech and Social Media

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Policy Analysis: Free Speech and Social Media
During the last decade, the Internet and social media sites have brought about significant changes related to law enforcement officers and the limits of free speech. In case after case, law enforcement officers have argued the protections of the First Amendment to the Constitution while their employers strive to maintain harmonious workplaces and positive community relations. In this paper the model policy for social media use in law enforcement will be analyzed, along with examples of unprotected speech and the driving forces behind free speech arguments.

Free speech is guaranteed by the First Amendment to the Constitution. The founding fathers believed the freedom of the citizenry to question and publicly scorn the government to be of such importance, it was their first order of business. Such speech is not absent limits and some fail to understand what the First Amendment prohibits. The protections for individuals include the language; Congress shall make no law that abridges free speech. Certainly case law has provided some examples of unprotected speech to include statements that would cause public terror such as yelling “fire” in a theater, harassing statements, disturbance of another's peace, and statements in the workplace that could create a hostile work environment (Van Brocklin, 2011).

Because the founding fathers left the First Amendment vague, the Congress, through legislation, and the courts through legal decisions have defined certain speech as unprotected. Important differences exist between the speech of a citizen and the speech of an employee. Even more disparity exists between employees who work in private industry than employees of the government. Technology available through social media and the ability to communicate internationally in seconds has created a whole new arena for employees and employers (Van Brocklin, 2011).

Private Employees versus Public Employees
Substantial differences exist between private employers and governmental employees. Essentially, free speech protections do not extend to employees of private businesses. Although free speech in the workplace is restricted, laws related to “whistle blower” protections and certain protected classes of people persist. Furthermore, the National Labor Relations Act (NLRA) protects employees from an employer interfering with an employee’s verbalization regarding work conditions, supervisors, and the organization. These same protections do not apply to government jobs, such as municipal police departments. It is important to understand that these protections are not founded in the First Amendment, but in statutes, contracts, case law, and policies and procedures (Van Brocklin, 2011).

Public employees enjoy some protections related to the First Amendment, however these are limited. Case law has carved out a three prong test which is continually being applied to new cases before the courts. The three-prong test applies to oral and written communications, photographic depictions, videos, music, and performing arts. The following prongs of the test determine whether or not the officers speech is protected by the First Amendment: 1.The speech must touch on a matter of public concern

2.The speech must be made as a citizen, not as part of the officers official duties 3.The speech must address an issue of public interest, and the officers interest must outweigh the agencies interest in promoting and maintaining efficient operations (Baker, 2011).

Public Concern
Typically, the public is not interested in the inner-workings of police agency. Issues surrounding promotions, advancements, or displeasure with the bosses is not a matter of public interest. For example, in Connick v. Myers an assistant district attorney circulated a letter inquiring about employees morale and work conditions. The assistant district attorney was fired for his communique and the Supreme Court...
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