Policing Policies and Freedom of Speech

By Jean Reynolds


Most Americans know that the First Amendment to the US Constitution guarantees us freedom of speech. But there is widespread confusion about what “freedom of speech” means. Police officers need a clear understanding of what rights are protected and what those protections mean.

Violating a citizen’s right to freedom of speech can result in dismissal of charges or a “not guilty” verdict. Here’s a scenario that you may have seen in a TV show: A citizen is pulled over for speeding. He starts arguing with the officer who stopped him. Things get heated, and the citizen uses a couple of bad words. The officer says, “That’s it. I’m booking you. Nobody talks to me that way.”

An officer on television can talk and act that way - but it’s not advisable in an actual encounter with a citizen. Officers have to carefully avoid any suggestion that they’re interfering with a citizen’s freedom of speech.

Sometimes this can cause officers to feel that they’re the ones being deprived of their rights. You may have seen media reports about officers who were disciplined - or even lost their jobs - because they posted offensive words or a distasteful picture on social media. Don’t officers have First Amendment rights too?

Of course they do. But the First Amendment is widely misunderstood. Here are some basic principles you should know:

1. The First Amendment guarantees protection against government retaliation only. In practical terms, that usually means protection from arrest. The First Amendment does not protect Americans from disciplinary action, firing, or other consequences of speaking out.

If a supervisor disapproves of something you posted on social media - a racist joke, sexist picture, or distasteful comment - you may be disciplined or fired. There may be some protections in place for you, but they usually come from union procedures or other workplace policies rather than the First Amendment.

2. Because law enforcement is a government function, police officers have to be careful not to violate anyone’s First Amendment rights. Most spoken and written words are protected from arrest, including hate speech. Freedom of speech covers everyone on American soil, even undocumented immigrants. There are a few exceptions: libel and slander can be prosecuted, and so can lying in court and a few other types of speech.

3. It’s important to know local ordinances and agency policies and procedures concerning freedom of speech. If two neighbors get into a shouting match and call the police, you probably won’t be able to arrest them for the racist slurs they’re throwing at each other. That’s protected speech. But there may be a noise ordinance, a disturbing-the-peace law, or another statute that can resolve the situation.

Law enforcement leaders offer the following advice to police officers:

  • Don’t allow yourself to be distracted by offensive language.
  • Stick to your principles even if the citizen you’re talking to is losing their self-control.
  • Remember that social media is a public forum. Don’t post anything that might embarrass you at work. In this digital age, you have very little privacy.
  • Don’t overestimate your First Amendment protections. You’re safe from jail - and that’s usually all.
  • Your sense of humor can work both for and against you. Humor is a great stress reliever – but it can also send the wrong message about your values. Think about who’s listening, and remember that words can spread.

It’s human nature to use language to let off steam. Citizens do it, and so do police officers. But words can be dangerous, and they can be used against you. Know your agency’s policies, be aware of the laws in your jurisdiction, and - most important - make sure you thoroughly understand the protections and limitations embedded in the First Amendment.