As society and technology evolves the usage of social media continues to grow at an astonishing rate. We use Facebook, Twitter, Instagram, Snapchat, and other social media outlets to connect and reconnect with family and friends. Not only are they networking sites, but we can share life experiences, ideas, careers, and interests via virtual communities. This virtual hub is where an individual can be their freest form without any consequences for the most part. However, there is a great debate whether employment policies, regulations, and ethics infringe upon our privacy rights and excessive control of off-duty behavior. Specifically, for law enforcement officers. Law enforcement officers are on the front line and the backbone of the American criminal justice system. They have taken oaths and swore to protect and serve the community while upholding the integrity of the criminal justice system. Society depends on police officers to control deviant behavior we find immoral. Nonetheless, law enforcement officials are human beings just like we are. After they sign off for the day, they go home to their families and interact and engage in activities any other individual would. So, why are law enforcement officers off-duty conduct closely observed and regulated? Is this idea of a “higher standard” the reason why their off-duty behavior can potentially impact the integrity of the criminal justice system? In this paper I will discuss the theme of a “higher standard,” the integrity of the criminal justice system, social media and the First Amendment, and when off-duty unbecoming conduct of an officer can potentially put the integrity of the system at risk.
I. The Theme of a Higher Standard
The “higher standard” theme was introduced formally by William Aitchison, an attorney and author of The Rights of Law Enforcement Officers. He suggested that there is an idea that law enforcement officers are subjected to a “higher standard” than other employees. According to Aitchison (2015), this higher standard is described in two ways:
First, the notion is that conduct which might not be punishable if the individual were employed as a carpenter, an accountant, or in any other position, would be punishable if engaged in by a law enforcement officer. Second, the belief is that if misconduct has been proven, law enforcement officers are subject to a higher degree of discipline than other types of employees. (p. 95)
He then explains that after reviewing numerous of disciplinary cases involving law enforcement officers, if this standard ever truly existed, then today, it is limited to a very narrow set of facts (Aitchison, 2015). Nonetheless, there are some limited areas where the “higher standard” is said to exist such as being convicted of a crime or dishonesty which led to an automatic discharge. However, the power of this old rule has somewhat diminished and law enforcement officers discipline cases are usually treated the same as other type of employees. For a while I was under the impression this standard did exist; mainly because of my personal relationship with a law enforcement officer. I noticed that this person couldn’t engage in certain activities or interact with others who engaged in deviant behaviors, because this could put them at risk of losing their job. I believe that there might not be a technical concept of a higher standard, but professionals who work for the criminal justice system should have a good set of ethics. How can we discipline others for deviant behavior or prevent corruption if we are engaging in the same conduct as well? This idea is a common misconception amongst society that not only law enforcement officers, but teachers, attorneys, and doctors are held to a higher standard. It is not that we are treated differently than other employees, but we are expected to maintain a certain level of integrity and ethics since we have a direct influence on society.
II. The Integrity of the Criminal Justice System
We can’t efficiently explain how an officers off-duty behavior on social media impacts the system, if we don’t know what the integrity in the criminal justice system means. Police serve a critical function in the criminal justice system such as prevention and investigation of criminality. Their vital role in society is to maintain peace, security, and uphold the rule of law. Law enforcement officers rely on developing trust amongst people and the communities they serve to do their job effectively. So, to achieve and maintain this level of trust, the agency should be free of corruption and uphold the highest standards of integrity and accountability (UNODCAPA, n.d.). According to the United Nations Office on Drugs and Crime, integrity in the police services is necessary to ensure that the individuals who work for the police uphold the values of the police service and enjoy the confidence and trust of the public they serve (UNODCAPA, n.d.). The confidence of the public isn’t based solely on the principle of that police service is generally free of corruption, misconduct, and these violations will result in corrective action, but how the police approach encounters and circumstances with individuals in society. A positive relationship between law enforcement officers and the public leads to lower crime rates, more public reporting, and increased community cohesion.
The personal lives of law enforcement officers are becoming more public and this presents certain risks such as integrity, effectiveness, and reputational standing to law enforcement officers and agencies. Many police oversight bodies identify social media as a threat to law enforcement integrity. A police officers use of social media on and off-duty can impact the reputation and effectiveness of policing. Social media sites can be referred to as “quasi-permanent,” which means to be temporary. Most, if not all social media websites have quasi-permanent searchable archives of personal information and postings that can be accessed by an array of “hidden audiences.” These hidden audiences consist of people you have accepted as an online “friend.” Social media platforms have the ability to link personal data or compromising information to hidden audiences causing an infringement upon police officer’s “private” lives. For example, an officer posts a racially motivated joke on his Facebook page only for his “friends” to see. However, the officer is unaware that postings or any data they have shared automatically goes to a searchable archive that can be accessed by not only his friends but friends of friends and strangers as well. So, even though an officer may utilize “privacy settings” to restrict access from others, there’s still a possibility that those postings may be viewed by others. Also, social media favors public access, so a user’s privacy settings are somewhat limited. Thus, forcing users to choose between “friends” or “friends of friends” to limit access. A police officer posting bigoted remarks on his social media page can seriously impact the reputation of himself, the agency, and the criminal justice system. How can society trust law enforcement to protect and serve if our police officers are engaging in inappropriate behavior regardless if they’re on or off-duty? A positive relationship between police officer’s and the members of the communities they serve is built upon trust. So, the public can’t trust or have confidence in the criminal justice system if their employees aren’t representing what the system stands for; which is maintaining the peace and upholding the values of the police service.
III. Social Media and the First Amendment
The use of social media websites is at an all-time high. Typically, an employee will have at least one social media account if not more. An employee may vent about workplace grievances, criticize their employer, or post about other work-related issues on their social media profiles. According to Aitchison, a social media environment leads some officers to believe that they have special protection against comments they make online (Aitchison, 2015). However, that belief is inaccurate and social media speech made by law enforcement officers are treated for disciplinary purposes in the same way as other forms of free speech. Now, police officers may be protected for certain comments they make online while off-duty such as public interest matters, union activities, or purely private matters (Aitchison, 2015). If their speech doesn’t fall in one of the three categories it may not be protected from disciplinary action. Nonetheless, if an employer wants to protect the agency’s reputation from unbecoming conduct, they must have detailed rules stating what is and isn’t permissible conduct on social media and consistently update those rules (Aitchison, 2015).
The National Labor Relations Board (NLRB) defines social media speech as “water-cooler talk.” This form of speech has been protected as informal collective action under the National Labor Relations Act even if the “water-cooler talk” criticizes the employer (Aitchison, 2015). According to the NLRB, employers should only take adverse action only if the posts made by the employee is unrelated to the terms and conditions of employment. For instance, in the Karl Knauz Motors case an employee made two posts about his employer. The first post was about the BMW dealership serving low end food options such as hot dogs, chips, and cheap water at a promotional event. Management and the employees held a meeting prior to the event to discuss the issue of what type of food would be served. The employees expressed their disapproval for the cheaper food options, but management proceeded with their first choice. An employee posted a number of comments and pictures about the event like “I was happy to see that Knauz went “All Out” for the most important launch of a new BMW in years …” and “The small 8 oz bags of chips, and the $2.00 cookie plate from Sam’s Club, and the semi fresh apples and oranges were such a nice touch…”. A car accident occurred at the dealership around the same time of the promotional event. A car dealer allowed a thirteen-year-old boy and the son of a customer to drive a car. The child accidently hit the gas pedal, ran over his father’s foot, and drove the car over an embankment into a pond. After observing the series of events, the same employee who made comments about the promotional event on his Facebook page, posted pictures of this incident stating “This is your car. This is your car on drugs” and other comments. The Administrative Law Judge held that the postings about the promotional event fell within the Act’s definition of “protected, concerted activity,” but the Land Rover posting wasn’t, and his termination didn’t violate the act.
So, the scenario above applies to situations involving law enforcement officers as well. An employer can’t discipline an officer over social media speech if it’s protected concerted activity and related to the terms and conditions of employment. Also, to enforce regulations on social media employers must have specific detailed rules on what is and isn’t acceptable. However, it’s when an officer exhibits unbecoming conduct on social media and post comments unrelated to the terms and conditions of employment that threatens the integrity and reputation of the law enforcement agency and the criminal justice system.
IV. Conduct Unbecoming of an Officer
By far the largest number of law enforcement disciplinary cases arise under rules prohibiting “conduct unbecoming” a law enforcement officer (Aitchison, 2015, p.96). The concept of conduct unbecoming rules was implemented to punish misconduct that doesn’t fall within the agency’s specific rules, but the conduct displayed permits disciplinary charges.