Social Media Policies – Avoiding “Headlines” And Litigation

Fire Chiefs should consider adopting a Social Media policy and conducting annual refresher training, including sharing "war stories." Hopefully, this will help avoid "headlines," discipline, and litigation.  At the end of this article are five items to be considered in a Social Media policy.

Headlines: See these unfortunate headlines and a significant recent Court decision.

  • November 22, 2014: “Tamir Rice shot 'within two seconds' of police arrival - Video footage of the fatal shooting of a 12-year-old in Cleveland shows he was shot within two seconds of the police arriving. Tamir Rice was shot and killed by police because they believed he had a gun; it turned out what he was carrying was a fake.” Also see this video.

  • March 18, 2016: “Cleveland fires EMS captain over 'egregious' Facebook post about Tamir Rice.”

  • February 12, 2018: “Cleveland EMS captain fired over offensive Tamir Rice Facebook posts says someone else posted them.” January 11, 2019: “City of Cleveland to pay $6 million to Tamir Rice's family to settle lawsuit.” 

  • August 20, 2020: “Appeals court: Cleveland EMS captain fired for Facebook posts can resume lawsuit against city.” 

6th CIRCUIT – “BALANCING TEST” WHEN POST IS ABOUT ITEM OF “PUBLIC CONCERN”

August 20, 2020: Jamie Marquardt v. Nicole Carlton; City of Cleveland, U.S. Court of Appeals for Circuit (Cincinnati, OH) (3 to 0) reversed U.S. District Court Judge Solomon Oliver, Jr. in Cleveland who had granted the City’s motion for summary judgment, and remanded the case back to trial judge.  6th Circuit decisions are precedent for Federal District Court judges in Kentucky, Michigan, Ohio and Tennessee, but may also “influence” similar decisions nationwide.

6th Circuit decision:

CHAD A. READLER, Circuit Judge.

“Because Marquardt’s social media posts addressed a matter of public concern, the district court erred in granting summary judgment on that basis. Accordingly, we REVERSE the judgment below and REMAND for further proceedings consistent with this opinion.”

Two Facebook posts

Let me be the first on record to have the …. to say Tamir Rice should have been shot and I am glad he is dead. I wish I was in the park that day as he terrorized innocent patrons by pointing a gun at them walking around acting bad. I am upset I did not get the chance to kill the criminal f……

Someone by the name of Kevin, apparently one of Marquardt’s cousins, posted a comment in reply. A second post then appeared on Marquardt’s page:

Stop Kevin. How would you feel if you were walking in the park and some ghetto rat pointed a gun in your face. Would you look to him as a hero? Cleveland sees this felony hood rat as a hero . . .
“We ask first whether the speech was on a ‘matter of public concern,’ and if it was, we balance the interests of the employer and employee, asking whether the employee’s free speech interests outweigh the efficiency interests of the government as an employer.“ Rorrer v. City of Stow, 743 F.3d 1025, 1047 (6th Cir. 2014); see also Handy-Clay v. City of Memphis, 695 F.3d 531, 544 (6th Cir. 2012).”

Other than resolving the ‘public concern’ question, our decision today is narrow. We do not decide any other aspect of Marquardt’s free speech claim, including whether the posts on his Facebook page amount to protected speech. In resolving this latter question, the district court will need to address whether Marquardt’s free speech interests outweigh the interest of the Cleveland EMS captain in the efficient administration of its duties.

FD Social Media Policy – Five Suggested Items

1.    Improper Posts Undermine Confidence in the Fire Department

FDNY:  (Chap. 1, page 12.)“The improper use of social media can undermine the confidence of the public in the integrity of the Fire Department and its employees, and can impact our ability to effectively deliver life-saving services. As such, this Policy applies to both official and personal use of social media by FDNY employees. All employees are reminded that they are accountable for their conduct while on duty and are accountable for off duty conduct when it could reasonably be expected to be disruptive of the workplace or agency operations, or bring the agency into disrepute.”

2.    Clear Description of Prohibited Content

Boston FD: “Members of the Boston Fire Department shall not use:

  • Profane language or content;
  • Content that promotes, fosters, or perpetuates discrimination on the basis of race, creed, color, age, religion, gender, marital status, status with regard to public assistance, national origin, physical or mental disability or sexual orientation;
  • Sexual content or links to sexual content;
  • Conduct or encouragement of illegal activity;
  • Information that may tend to compromise the safety or security of the public or public systems;
  • Content that violates a legal ownership interest of any other party;
  • Images and/or video from incidents which have not been cleared for usage by the department.”
3. Recognize Employee-First Amendment and NLRB Rights

Phoenix FD: “Nothing contained in this Management Procedure shall be construed as denying employees their civil or political liberties as guaranteed by the United States and Arizona Constitutions. Nothing contained in this policy shall be construed as interfering with the rights of employees and employee organizations under the City’s Meet and Confer Ordinance. In addition, nothing contained in this policy shall be construed as interfering with the rights of employees and employee associations under the City’s Meet and Discuss Ordinance.”

4.    Caution Employees – Deleted Info May Still Be Accessible

IAFF: “Unless special protections are put in place, information that is posted on the Internet is available for anyone to see. Even information that is deleted from a website may still be accessible. Therefore, be cautious when posting information to any social media site.”  =

5. “Headlines Test” – Share war stories

 

Professor Bennett writes a free, monthly Fire & EMS Law newsletter; send him an e-mail if you wish to receive it.

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