Los Angeles Police Department Legal Bulletin - Limitations on First Amendment Rights - February 2008 PDF

LEGAL BULLETIN LOS ANGELES POLICE DEPARTMENT RISK MANAGEMENT GROUP-LEGAL UNIT Volume 32, Issue 1 February 27, 2008 LIMITATIONS ON A POLICE OFFICER’S FIRST AMENDMENT RIGHT TO FREEDOM OF EXPRESSION As individual citizens, each of you has a first amendment right to freedom of expression. However, th...

LEGAL BULLETIN LOS ANGELES POLICE DEPARTMENT RISK MANAGEMENT GROUP-LEGAL UNIT Volume 32, Issue 1 February 27, 2008 LIMITATIONS ON A POLICE OFFICER’S FIRST AMENDMENT RIGHT TO FREEDOM OF EXPRESSION As individual citizens, each of you has a first amendment right to freedom of expression. However, the Department has a simultaneous right to restrict all expressions that are expressly or impliedly made in the name of the Department. California Government Code Section 3302 provides that public safety officers may be precluded from engaging in political activity while on duty or in uniform. The U.S. Supreme Court has held that a government agency may control public speech made in its name or supported by its dollars. Rust v. Sullivan, 500 U.S. 173, 198 (1991); National Endowment for the Arts v. Finley, 524 U.S. 569, 587-588 (1998). Similarly, a government agency can require that its employees separate their private speech or expressive activities from their actions on behalf of the agency. Id. Thus, your rights to free expression are restricted by various Department rules, policies and procedures designed to prohibit unauthorized expression that might appear to be made on the Department’s behalf. The violation of these rules, policies, and/or procedures could lead to Departmental discipline. This Bulletin intends to highlight three significant areas where your rights to free expression are restricted. STATEMENTS OR APPEARANCES ON-DUTY OR IN UNIFORM MUST BE AUTHORIZED The Department Manual prohibits officers from wearing the Department uniform while off-duty without approval. DM 3/606.15.1 The purpose of the request for approval is to allow the Department to determine if it wishes to endorse the planned speech or event by allowing that officer to “represent the Department.” Id. Thus, you must obtain Departmental approval in advance to attend, participate, or speak at events while either on-duty or in uniform. See also DM 3/778- 778.40 (approval for speeches and panel discussions). The procedure for obtaining such approval may be found in DM 3/606.15. Also, established Departmental rules, policies 1 The Manual allows the uniform to be worn while commuting directly to and from work, at Department recruit graduation, Department reserve officer graduation, Department in-the-lineof-duty law enforcement officer funerals (as that term is defined in DM 3/797.60) or at functions for which the wearing of the uniform has been approved by the Chief of Police). Volume 32, Issue 1 - LIMITATIONS ON A POLICE OFFICER’S FIRST AMENDMENT RIGHT TO FREEDOM OF EXPRESSION and procedures must be followed for all Department-related media contacts. See DM 1/420.101.440.60 (general policy); DM 3/778.50 (television or radio appearances); DM 3/779-779.25 (approval for publications purporting to describe an official policy, procedure, or control); DM 4/ 297 (Press Relations Officer), and DM 4/298.40-298.80 (media access). STATEMENTS MADE IN THE NAME OF THE DEPARTMENT WITHOUT AUTHORIZATION ARE PROHIBITED No officer may make any statement in the name of the Department without proper authority. Thus, even an off-duty officer who is not in uniform could be disciplined for making statements that he falsely states he is authorized to make on behalf of the Department. Nor should an officer ever assert that his personal opinion is the opinion of the Department if the officer is not authorized to speak for the Department on that topic. Similarly, an officer may not make a public statement or expression in a way that falsely suggests that the Department has approved the activity. The prohibition on the unauthorized, off-duty wearing of the uniform is one means by which the Department may prevent an officer from engaging in an expressive activity in a way that implies Department permission. The Department also prohibits officers from publishing writings that purport to state an official policy, procedure or position of the Department without Departmental approval. DM 3/779779.25. Similarly, as discussed below in Section III, the Department prohibits officers from trading on their employment, position, or rank to endorse an organization, product, program, or service. DM 1/270.20. Obviously, there are a nearly endless number of circumstances that might transform the private expressive activity of an officer into one where it has been improperly implied that the officer is representing the Department. The nature of the circumstances will drive how the Department evaluates the incident. Each officer should take every reasonable step to avoid any confusion about the private nature of his or her expressions when engaging in private activity. To avoid a conflict with the established Department policies discussed in this bulletin, the officer should not wear any part of his or her uniform, and should not trade on his rank and position with the Department to give weight to his or her expression. The officer should not publish unapproved statements about official Department policies or procedures and should not submit uniformed photographs of the officer for publication. Finally, the officer should note the private nature of his or her opinions, and shall attempt to correct actions by third parties implying that the officer’s private expressions are on behalf of the Department. 2 Volume 32, Issue 1 - LIMITATIONS ON A POLICE OFFICER’S FIRST AMENDMENT RIGHT TO FREEDOM OF EXPRESSION SPEECH THAT INVOLVES A MATTER OF PUBLIC CONCERN AND DOES NOT INTERFERE WITH DEPARTMENT’S ABILITY TO DO ITS JOB IS PROTECTED BY THE FIRST AMENDMENT. An officer has greater protection under the First Amendment and other laws when the officer is addressing a “matter of public concern.” “Matters of public concern” involve political or social matters of concern to the greater community, such as proposed or existing law, societal concerns about crime prevention, and allocation of scarce public resources within the Department. A matter is not of public concern if it deals with an individual personnel dispute or grievance that is not relevant to the public’s evaluation of the LAPD’s performance. Gossip, flirtation, quarrels, taunts and slurs are almost never “matters of public concern.” Officers’ speech that criticizes or questions an LAPD policy may qualify as a “matter of public concern” and be protected under the First Amendment, as long as it does not impair the LAPD’s ability to do its job. Speech that could impair the LAPD’s ability to do its job includes speech that negatively affects the chain of command, disrupts working relationships, or unnecessarily interferes with Department operations. For example, the U.S. Supreme Court has ruled that a public employee could not be disciplined for submitting a letter to his local newspaper criticizing his employer’s budgetary policies.2 Other courts have ruled that an officer could not be disciplined for speaking to a news reporter about his involvement in lobbying Congress about pending legislation and advocating that officers resort to other bargaining tactics to press their demands.3 As long as the officer is clear that he or she is speaking about his or her own views rather than speaking on behalf of the Department, and as long as he or she is speaking truthfully, an officer can speak off duty in a public forum or to the media about “matters of public concern.” When speaking to the media or making any other public appearance without advance Department approval, it is important that an officer states clearly that he or she is acting on his or her own behalf and not on behalf of the Department. Thus, a clear statement ensures that the views the officer is expressing are his or her own and are not being expressed on behalf of the Department. Wearing one’s uniform in such an appearance requires approval, as discussed above, because it may give the incorrect impression that the officer is acting on behalf of the Department. In unusual circumstances, however, the First Amendment may protect an officer who has engaged in an expression about a matter of public concern while in uniform from being disciplined. For example, one court ruled that a law enforcement agency could not terminate several officers who peacefully picketed in uniform over alleged employment discrimination within their police department.4 However, there are no bright-line criteria for determining when such a demonstration falls under or outside of First Amendment protection, and any officer 2 Pickering v. Bd. of Edu., 391 U.S. 563 (1968). 3 Tygrett v. Barry, 627 F.2d 1279 (D.C. Cir. 1980) Leonard v. Columbus, 705 F.2d 1299 (11th Cir. 1983). 4 3 Volume 32, Issue 1 - LIMITATIONS ON A POLICE OFFICER’S FIRST AMENDMENT RIGHT TO FREEDOM OF EXPRESSION should proceed along such lines with caution. The safest course may be for the officer to seek Department approval before engaging in an expression of his/her First Amendment rights in any such demonstration. Using legal advice if necessary, the Department will give approval for any expressions that are protected by the First Amendment. CERTAIN COMMERCIAL OR POLITICAL SPEECH IS PROHIBITED Department policy also prohibits use of an officer’s capacity, title, or position in the Department to endorse any organization, program, product or service. DM 1/270.20. Thus, you may not use your rank, position, and/or affiliation with the Department, a uniformed photograph, or a uniformed personal appearance to market a business, or endorse a political candidate or issue. Outside employment and activities are restricted by Government Code Section 1126 and DM 1/270.30. Both prohibit, among other things, outside activities which are inconsistent with, incompatible, in conflict with, or inimical to your duties as an officer of the Department. Outside employment must be pre-approved. Finally, as mentioned above, an officer may write and publish most articles or other written works without advance Department approval. DM 3/779-779.25 An officer need only get advanced approval to publish his written work if it purports to describe an official policy, procedure, or position of the Department. Of course, no confidential Department procedure, case information, or other matter should be disclosed in any published work. SUMMARY When considering whether there is a limitation on your First Amendment right to engage in speech or expression, consider the following: 1. Is the statement or appearance made while on duty? On-duty conduct requires Department approval. 2. Is the statement or appearance made while in uniform? Department policy requires permission before wearing the uniform while off duty, except in a handful of situations set forth in DM 3/606.15 of the Department Manual. In-uniform statements or appearances are likely to appear to be made on behalf of the Department, even if they are not. Except for unusual circumstances, statements or appearances made in uniform without Department approval may be subject to discipline. 3. Could the statement or appearance be misunderstood as one made on behalf of the Department? 4 Volume 32, Issue 1 - LIMITATIONS ON A POLICE OFFICER’S FIRST AMENDMENT RIGHT TO FREEDOM OF EXPRESSION Only statements that are clearly the expressed views of the individual, and not made on behalf of the Department, are protected by the First Amendment. 4. Is the statement or expression about a “matter of public concern”? Speech and other expressions about “matters of public concern” enjoy greater protection under the First Amendment and are less likely to result in discipline. 5. Does the statement impair the LAPD’s ability to do its job? Speech or expression that impairs the LAPD’s chain of command or other working relationships, or unnecessarily interferes with Department operations, does not receive full protection under the First Amendment and may result in discipline. 6. Does the expression use a title or position with the LAPD to endorse a commercial or political interest? The use of one’s title or position with the LAPD to benefit a business or endorse a political candidate or issue is prohibited and is not protected by the First Amendment and may result in discipline. This Bulletin does not address free speech and similar issues as they relate to unionrelated or other organized labor activities. Consult your Los Angeles Police Protective League representative for any questions concerning your rights in that area. If you have questions regarding this Legal Bulletin, you may contact Employee Relations Group at (213) 485-6552, or the Legal Unit, Risk Management Group, at (213) 978-8300. 5