Social media use by your personnel can be your best friend....or worst enemy

Fire department leadership would be naive to ignore social media as a primary means of communicating information about the department and its activities. The leadership would be equally naive to think its members and/or employees are not using social media at an increasing rate. Many leaders attempt to handle issues such as members posting about the department on Facebook or Twitter with an iron fist. Using this approach may not be effective and ultimately may not be constitutional.

First, some postings by individual members may show your organization in a very positive light (this is especially true of a well-run, mission-oriented organization). Attempting to stifle a member's communication could hurt both morale and lesson your organization's reach. Remember, some of your members or employees may have a greater reach or more connections than the organization itself. There are clearly limitations that should be dealt with such as HIPAA matters (posting photos of patient's faces for example).

Second, an approach that broadly tries to stop employees and/or members from posting anything about the department, its operations or its administration may be found unconstitutional. In December of 2016, a federal appellate court dealt with a very broad social media policy put in place by a large police department (the case is Liverman v. City of Petersburg, No. 15-2207, 4th Cir.). The court ultimately used a test that has historically been used in all public employee/employer free speech issues (this test was used prior to the development of social media). A court will first look at the comments made and determine if they related to a matter of public concern or not. If they are not (for example a personal attack against a co-worker), the speech is not protected. If they are related to a matter of public concern (for example poor dispatch to onscene times for a fire department), then a court will look to balance the rights of the employee in communicating the matter of public concern to the public vs. the right of its employer (the police department in this case) in promoting the efficiency of delivering its service to the public.

In the Liverman case, the specific language at issue prohibited "[n]egative comments on the internal operations of the Bureau, or specific conduct of supervisors or peers that impacts the public's perception of the department is not protected by the First Amendment free speech clause, in accordance with established case law." The officers who were disciplined had an exchange on one of their Facebook pages about how the department was promoting inexperienced officers too quickly and using them as field training officers.

The court found the policy to be unconstitutional because it was too broad and covered speech protected by the First Amendment. The court summarized its position by stating "Running a police department is hard work. Its mission requires capable top-down leadership and a cohesion and esprit on the part of the officers under the chief's command. And yet the difficulty of the task and the need for appropriate disciplinary measures to perform it still does not allow police departments to wall themselves off from public scrutiny and debate. That is what happened here.." A similar analysis could easily be seen when a fire department is involved.

If your department is looking for a review, or drafting, of a social media policy please contact your company's attorney or if you do not have one, contact Valocchi Law, LLC for guidance.

**It should be noted - First Amendment issues, as discussed here, are related to public employers/employees. An individual fire department may, or may not, be considered a public employer in this arena.**

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