The New Jersey Police Chief Magazine | June 2022
Can A Police Officer Be Disciplined For Expressing Opinions ?
By Fredric M . Knapp , Esq .
There has been considerable controversy in recent years concerning the exercise of free speech by law enforcement officers . Although words used by police officers while on duty can clearly be restricted by the employer , the more pressing issue is whether or not such restrictions can be imposed for off-duty speech . The controversy has also included arguments regarding spoken words as opposed to posting on social media and First Amendment protections . This article provides a perspective on the issues that may arise .
As we know , the First Amendment to the United States Constitution provides that “ Congress shall make no law abridging the freedom of speech .” However , are there First Amendment implications for an employer taking action against an employee ’ s speech during either working or after-work hours ?
The seminal case in New Jersey has been Karins vs . City of Atlantic City , 152 N . J . 532 ( 1998 ). Therein , the New Jersey Supreme Court held , inter alia , that :
( 1 ) A racial epithet uttered by an employee is not protected by the First Amendment in a disciplinary context ;
( 2 ) The employer ’ s rules and regulations must not be vague or over-broad to satisfy constitutional muster .
A statute or regulation is facially unconstitutional for vagueness if it “ either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application .” Karins , supra . New Jersey Courts have upheld regulations concerning workplace speech and discipline imposed under rules and regulations that are not vague or over-broad . Generally , Courts have allowed the Government more leeway in regulating conduct-related speech rather than prohibiting speech itself . Where a public employee speaks as a citizen on a matter of public concern , the Government must demonstrate an adequate justification for treating the employee differently than the general public based upon its needs as an employer . Balancing the interests of the employee as a citizen in commenting upon matters of public concern against ,
[ t ] he interests of the public employer in promoting the efficiency of the public services it performs through its employees . A public employer is not required “ to allow events to unfold to the extent that the disruption of the office and disruption of working relationships is manifest before taking action .” Connick vs . Myers , 461 U . S . 138 , 152 ( 1983 ).
The Federal Courts have historically followed the Supreme Court ruling in Connick . For example , the United States Court of Appeals for the 2 nd Circuit , which includes New York City , has ruled that the First Amendment does not require a government employer to sit idly by while its employees insult those it hired to serve and protect . Lucurto vs . Giuliani , 447 F . 3 rd . 159 , 183 ( 2 nd Circuit 2006 ). Furthermore , the same Court has said the effectiveness of a city ’ s police department depends importantly on the respect and trust of the community and the perception in the community that it enforces the law fairly , even handed , and without bias . Pappas vs . Giuliani , 290 F . 3 rd . 143 , 146-7 ( 2 nd Circuit 2002 ). Therein , the Court further stated that an individual police officer ’ s right to express his personal opinion must yield to the public good . Id . at 147 . A governmental employer ’ s right to discharge an employee by reason of his speech in matters of public importance does not depend on the employer ’ s having suffered actual harm resulting from the speech . The employee ’ s speech must be of such nature that the government employer reasonably believes that it is likely to interfere with the performance of the employer ’ s mission . See Waters vs . Churchill , 511 U . S . 661 , 673-74 ( 1994 ). The government employer need only make a substantial showing that the speech is likely to be disruptive . See Connick , 461 U . S . at 152 . Further , the Court held that the Government may legitimately disregard as “ disruptive ” expressive activities that perpetuate the public perception of police officers as racist . Lucurto , supra . at 178 .
The Court in Lucurto further stated “ it is more sensible , instead to treat off-duty , non-work-related speech as presumptively entitled to First Amendment protection regardless of whether , as a threshold matter , it may be characterized as speech on a matter of public concern .” The closeness of a government employee ’ s off-duty , non-work-related speech to the heart of the First Amendment then becomes relevant “ as part of the Pickering balancing test , to be weighed against the government ’ s interest only after the government meets its burden of
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