This month’s “State your Case” discusses whether agencies should allow personnel to speak their mind while in uniform on social issues and laws.
Our debaters: Jim Dudley, a 32-year veteran of the San Francisco Police Department where he retired as deputy chief of the Patrol Bureau, and Chief Joel Shults, EdD, who retired as chief of police in Colorado.
The ground rules: As in an actual debate, the pro and con sides are assigned randomly as an exercise in critical thinking and analyzing problems from different perspectives.
The issue: While in uniform in his patrol car, a Seattle cop questioned enforcement of COVID-19 decrees in a video that has amassed nearly 1 million views. The officer faces an end to his career for speaking out in this way on an important issue. The limits of free speech for law enforcement officers are being tested in an age of instant communication and viral videos. Is this officer a catalyst for positive change, a sacrificial lamb, or was he mistaken recording this video while in uniform? After watching the video, check out our columnist’s viewpoints.
Joel Shults: It seems to me that the armed government agent should be preeminent among those protected by the First Amendment’s prohibition against government interference with free speech. We know, of course, that speech that presents a credible threat, incites immediate harm, or slanders is not protected speech, but is speaking truth protected even when controversial?
Police officers in uniform and on the clock make presentations unsupervised in all kinds of venues. They are in school classrooms, speaking at service clubs and engaged in conversation with other citizens regularly. Extreme prior restraint of that speech doesn’t seem to be a priority. Only when a video commentary goes viral do the chiefs and politicians decide that free speech is not allowed by government agents.
Clearly a rant that promotes violence or unlawful discrimination discredits a law enforcement agency, but the ubiquitous filming of cops from all angles was not designed to muzzle officers. Just because an officer turns a camera on themselves doesn’t change their right to self-expression on topics of public concern. The dialogue created by officers speaking out can be a great community builder. Allowing officers to dance and lip-sync and make harmless, humorous banter on social media but not serious commentary is a mistake.
Jim Dudley: Working for a police agency means you work for a para-military organization. You agree to take an oath and follow a chain of command and take orders – unless unlawful – and you follow them without personal opinion or personal public posturing. The courts are the vehicle to determine Constitutional authority, which means individuals need to opine on the veracity to rationalize whether they follow orders or not.
Understandably, some officers do not want to enforce shelter-in-place orders but substitute any other lawful direction (insert cause de jour here, such as controlling either side of a protest or demonstration, or denying the use of public lands or facilities, as examples) and the bottom line is: “Policing is not a democracy.”
Allowing officers to question or waffle on following orders to decide whether or not they will comply will create anarchy along the ranks and orders will be questioned at all levels.
The courts have upheld a police agency’s authority to direct officers while on duty and in uniform, and support their authority to take disciplinary action for violations.
Members who disagree with department policies have two options: one is to voice their opinions on their own time out of uniform, as long as they don’t violate department policies on social media; and the other, is they have the ability to quit if they disagree with department policies and organizational orders.
Joel Shults: Jim you’ve done a good job of articulating current policy and practice. I contend here that it may be a time to change. We give a tremendous amount of discretion to our officers in regard to the use of force, arrest decisions, charging decisions and problem-solving. Can we not give discretion to the operation of their voice as well?
Topics worthy of discussion, not only among cops but of interest to the general public can be fostered by officers speaking out – even in uniform. The profession has spent years trying to humanize police officers. These policies seem to attempt to homogenize them or even robotize them and strip them of thinking for themselves, and letting the public think along with them.
Jim Dudley: I hear what you are saying, Joel, yet, in a case when the argument may be over semantics or mild complaining, nobody gets hurt and ultimately, we may agree to disagree. It is a slippery slope when we allow all subjects on the table for discussion.
I certainly would not envy the agency arbiter when it comes to issues like Roe v Wade, firearms rights, gender issues, religious differences, or subjects of an even more volatile substance. Currently, agencies have social media general orders that limit officers’ participation while on or off duty or in uniform. Some departments have orders that prohibit endorsements of products or political issues and candidates, for good reason.
Would we allow officers to walk off protest lines when they do not believe in the cause they are sent to maintain order? We have already seen situations where personnel within an agency resist illegal immigration enforcement, Red Flag firearms laws and evictions of people illegally occupying properties of others. It has the potential to disintegrate the foundation of the chain of command authority within an agency.
I think, for the foreseeable future, that agencies should and will maintain their right to separate the opinions and allegiance to public domain issues by an on-duty officer.
Joel Shults: Jim, it looks like your view reflects the prevailing reality, and it won’t likely change soon. But officers will continue to challenge restrictions on their right to free expression, and probably pay a price for doing so.
What do you think? Email editor@policeone.com.
NEXT: Should the constitutional cop be fired?
About the authors
James Dudley is a 32-year veteran of the San Francisco Police Department where he retired as deputy chief of the Patrol Bureau. He has served as the DC of Special Operations and Liaison to the Department of Emergency Management where he served as Event and Incident Commander for a variety of incidents, operations and emergencies. He has a Master’s degree in Criminology and Social Ecology from the University of California at Irvine. He is currently a member of the Criminal Justice faculty at San Francisco State University, consults on organizational assessments for LE agencies and co-hosts the Policing Matters podcast for Police1.
Joel Shults operates Street Smart Training and is the founder of the National Center for Police Advocacy. He retired as Chief of Police in Colorado. Over his 30-year career in uniformed law enforcement and criminal justice education, Joel served in a variety of roles: academy instructor, police chaplain, deputy coroner, investigator, community relations officer, college professor and police chief, among others. Shults earned his doctorate in Educational Leadership and Policy Analysis from the University of Missouri, with a graduate degree in Public Services Administration and a bachelor’s in Criminal Justice Administration from the University of Central Missouri. In addition to service with the U.S. Army military police and CID, Shults has done observational studies with over 50 police agencies across the country. He has served on a number of advisory and advocacy boards, including the Colorado POST curriculum committee, as a subject matter expert.