'Sexy' cops vs. firefighters: Double standards and the law

Here’s what you need to know about the First Amendment, employer retaliation for speech, and double standards

Earlier this month, some police officers made headline news for being ‘too sexy’ for their uniforms. Female officers across the country had been posting provocative photos of themselves in plainclothes alongside photos of their uniformed selves to an Instagram account called Blueline Beauties. There was allegedly also a Blueline Beefcakes account featuring male officers.  

The photos wouldn’t get an average person kicked off Instagram. But NYPD officers were being investigated and possibly disciplined based on a department policy that prohibits officers from posting pictures of themselves in uniform on social media sites unless at official ceremonies. 

These officers would’ve made news even without the NYPD policy. All it would’ve taken is one disgruntled citizen. No police officer is considered by the public or media as “an average person.” If you haven’t figured this out, don’t go into investigations.

Firefighters Lauded for Sexy Photos
Meanwhile, New York City firefighters are making very different headlines. The first female firefighter to pose for the FDNY charity calendar is being celebrated by the media, the community and her department

The FDNY charity calendar is much racier than the police officer Instagram photos. The firefighters are posing in their uniforms — at least partially, because there’s lots of abs and pecs on display. Firefighters across the nation are selling bared down photos of themselves.  

What About First Amendment Rights?
I train police and firefighters nationwide on their rights, responsibilities, and liabilities for what they post on the Internet. Most understand that anything involving a uniform, badge, or other indicia of their departments is subject to department policy. But across the country, I’m asked by cops and firefighters: “What about my first amendment rights? Don’t I have any freedom of expression when I’m out of uniform, off-duty, using my own computer or cellphone?”

Charity calendars aside, firefighters aren’t immune from discipline or termination for internet postings. Here’s just a sampling of headlines:

•    Two firefighters and a police officer are suspended for “liking” ex-firefighter’s Facebook post 
•    Two firefighters terminated over unacceptable tweets; third fired over Facebook posts 
•    Firefighter fired over Facebook post of virtual firefighter video “joke”  
•    Fire Captain demoted for Facebook post blaming Trayvon Martin’s “shitbag”  

Individual department policies are beyond the scope of this article. But I will address your First Amendment rights as a public employee — cops and firefighters alike.

First Amendment Protections 
Private employees have no First Amendment protection against employer retaliation for their speech. That’s because the First Amendment protects our freedom of speech from being “abridged” by the government and private employers aren’t part of the government. Private employees may have other protections such as:

•    Employee policies and procedures
•    Union negotiated rights
•    Employment contracts
•    Whistleblower statutes
•    The National Labor Relations Act
•    Anti-discrimination laws

Public employees also have the benefit of some First Amendment protection from the government as their employer. It’s not the same protections that citizens have. That’s because public employers are conducting the people’s business and must be able to do so efficiently. Additionally, public employees have entered into a voluntary, contractual, employment relationship with the government.

The test for whether public employee speech is protected against a government employer’s retaliation is three-part:

1.    Is the speech about a matter of public concern?
2.    Is the employee speaking as a private citizen? 
3.    If the answers to #1 and #2 are both yes, the court will still weigh the employee’s interest in the speech against the police or fire department’s substantial interest in discipline, orderly operations and public trust, confidence and cooperation.

In an accompanying article today — Understanding court decisions on public employees’ First Amendment protections — I delve much more deeply into Connick v. Myers, 461 U.S. 138 (1983) and other court cases related to this matter, but in sum, if the speech doesn’t meet #1, above, it’s not protected. Even if it meets #1, if it doesn’t also meet #2, it’s not protected. And, even if it meets #1 and #2, the court is still going to do the balance in #3 before deciding whether the speech is protected. 

So, it is not too hard to see that neither the Blueline Beauties and Beefcakes nor the FDNY’s charity calendars are protected by the First Amendment against department sanctions. The disparate response from the media and their departments seems to depend on whether the photos are “selfies” [Bluelines] or for charity [FDNY calendar] as well as different public perceptions and expectations of police officers, firefighters, and their missions. 

Speaking of missions, cops are expected to testify in court in the performance of their law enforcement mission. To the extent the stuff cops post on the Internet can be used by criminal defense attorneys to impeach their credibility in court, it is much more likely to interfere with the performance of one of their critical job functions.  

Not fair? Perry the Policeman would certainly agree. Do we really want these kinds of photos going to the Supreme Court to see if they agree?

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