First Amendment Challenge To Harris County Sheriff’s Social Media Policy That Punishes Employee Speech

August 19th, 2014

The Houston Press reports that a Deputy in the Harris County Sheriff’s Department has filed suit challenging the Office’s social media policy, which bans employees from posting anything on social media that may “cause undue embarrassment or damage the reputation of and/or erode the public’s confidence” in the sheriff’s office. Further, “speech containing crude, blasphemy (sic), negative, or untrue claims about the HCSO and/or any HCSO personnel is forbidden and therefore will be grounds for disciplinary action.” The policy also provides that an employee’s actions “must never bring the HCSO into disrepute, nor should conduct be detrimental to the HCSO’s efficient operation.” The policy also provides that employees are “free to express themselves as private citizens on social media to the degree that their speech does not impair the working relationships of the HCSO . . . where such speech . . . negatively affect[s] the public perception of the HCSO.”

You can view the complaint, and the policy here.

Under Garcetti v. Ceballos, employees speech may be limited to communications made pursuant to the official’s duties. The Court reaffirmed this recently in Lane v. Franks. But here, the policy seems to be reaching purely private speech, done outside the workplace, that may have nothing to do with the employee’s duties. The policy tries to work around it, and seems to say anything said about the Office would be part of official duties–but this isn’t right:

HCSO personnel are cautioned that speech on or off duty, made pursuant to their official duties . . . is not protected speech under the First Amendment and may for [sic] the basis of discipline if deemed detrimental to the HCSO. Bureau personnel shall assume that their speech and related activity on social media sites will reflect upon their Bureau and on the HCSO.

Further, under Pickering v. Board of Education, public employees have the First Amendment right to speak critically about their employers, on matters of public importance, without fear of retaliation. In that case, a teacher wrote a letter to the newspaper criticizing the Board of Education. The Court upheld her right to do so, so long as the remarks weren’t knowingly or recklessly false.

The language in the policy seems really, really broad–especially “crude, blasphemy (sic), negative.” What does that even mean? This policy is extremely problematic.

From a policy perspective, shouldn’t we encourage employees revealing *accurate* information about police actions that would “damage the reputation of and/or erode the public’s confidence.” That means the police messed up, and the public should know about it.