Cop- Like ("[like]"): The First Amendment, Criminal Procedure, and the Regulation of Police Social Media Speech.

• Author: Abel, Jonathan

Table of Contents Introduction I. The First Amendment Paradigm A. Pickering's Application to Police Social Media Speech B. Where Critiques of Pickering Miss the Mark 1. Critiques of Pickering 2. Misapplication to police social media speech C. Pickering's Problem with Hidden Speech D. Pickering's Perverse Incentives 1. Incentives for pseudonymous and private social media speech 2. Incentives not to monitor officers' social media speech E. Pickering's Harm to Police Speech Rights II. The Criminal-Procedure Paradigm A. Literature and Other Commentary B. Case Examples 1. Plain View Project cases 2. Cases not involving the Plain View Project C. The Doctrinal Fit 1. Favorable 2. Materiality 3. Suppression 4. Non-Brady criminal-procedure material D. Why Criminal Procedure? III. Implication A. Proactive Monitoring and Its Drawbacks 1. Logistical 2. Legal 3. Policy B. Culture Change or Cancel Culture? Conclusion Introduction

Cops use social media like the rest of us. They promote themselves and their causes, they boost friends and call out enemies, they share random moments of humor and indignation, and they momentarily escape from the tedium of the day. A Border Patrol agent who was fired for his inappropriate comments on Facebook explained the operational necessity of social media use. (1) "[W]e get a slow spot. You're out in the desert right?" he said in a hearing contesting his discipline. "You got to keep mentally fit, so you jump on Facebook, jump on the internet. Scroll a little bit, have fun. Get the adrenaline flowing again, go have a good time." (2) Mental fitness for the agent, however, can cause nightmares for the agency.

Law-enforcement officers who make racist, sexist, xenophobic, violent, and otherwise offensive comments undermine the legitimacy of their law-enforcement agencies and draw the ire of supervisors--when they are caught. With police departments under public scrutiny--an "existential challenge" to "the fundamental structure, purpose, and practices of law enforcement," in the words of one department (3)--they are sensitive to any speech or conduct that makes them seem more biased or violent. When officers make biased or violent comments on social media, on or off duty, they can be subject to severe disciplinary action, as headlines around the country attest. (4) Meanwhile, officers subject to this discipline have complained that their First Amendment speech rights are being trampled in the name of political correctness. Legal challenges are just beginning to percolate through the courts, (5) and there is no reason to expect any reversal in this trend as social media becomes the default form of self-expression for more and more people.

Consider the case of Nate Silvester, a deputy marshal in Bellevue, Idaho. Five million people viewed a TikTok video he posted of his imagined conversation with LeBron James. In uniform, from the front seat of his patrol car, Silvester films himself pretending to ask James what to do about a knife-wielding assailant threatening another's life. (6) The confrontation is purportedly occurring just outside the car. Silvester identifies both assailant and victim as African American. "So you don't care if a Black person kills another Black person," Silvester asks James, "but you do care if a white cop kills a Black person even if he's doing it to save the life of another Black person?" (7) In the closing seconds of the video, Silvester speaks out the window: "Sorry guys, you're on your own, good luck!" (8) The short video, which referred to the police killing of Ma'Khia Bryant a few days before, (9) resulted in Silvester's termination--and a book deal. (10) While his video was unusual for how widely it spread, there are numerous examples of police social media comments resulting in termination.

Racist, sexist, xenophobic, and violent speech has been documented on police social media accounts throughout the country. In 2019, the Plain View Project published a database of 5,000 Facebook comments and posts by police officers that, in the group's view, "could undermine public trust and confidence in police." (11) The Plain View Project scoured the police rosters in eight cities and looked at public Facebook posts by the officers named on those rosters. (12) After publication of the Plain View Project's database, hundreds of officers in these cities faced punishment by their departments, including termination. In Philadelphia, for example, fifteen officers were terminated and 193 others were found to have violated department policy because of their Facebook comments. (13) Among the comments, officers referred to residents as "animals," (14) compared "Obama Voters" to "chimpanzees with their hands outstretched," (15) characterized racial justice protesters as "savages," and encouraged drivers to "Vroom Vroom" over protestors. (16) Some officers joked about shooting people in the heart, (17) called for "ban[ning] Islam from all Western nations," and celebrated prison rape as a form of justice. (18) And those were just the comments that the Plain View Project was able to access from officers' public Facebook profiles. Pseudonymous, private, and otherwise hidden social media posts present additional problems.

In Oakland, California, a pseudonymous account, @crimereductionteam, appeared on Instagram in fall 2020. The account began posting racist, sexist, and violent memes related to the Oakland Police Department and the residents of Oakland. According to news coverage, one of the memes labeled "a young white woman sitting on a couch as a 'cop that just wants to fight crime'" and then showed "[f]ive Black men in underwear looking] over her shoulder, in a clear reference to exploitative group sex." (19) The men were labeled "internal affairs," "police commission," "command staff," "spineless cops," and "criminals taking advantage of the situation." (20) The meme was apparently a critique of local and national efforts to reform the police department. (21) Other posts on this Instagram page "made light of police officers using force, and dismissed police brutality complaints as annoyances." (22) When inquiries from the media brought commanders' attention to the page--which appeared to have involved posts by Oakland police officers--the department launched what the police chief would call a "scorched earth" internal affairs investigation to identify and discipline the culprits. (23) Federal Judge William Orrick, who was overseeing the police department's two-decades-old consent decree, (24) urged further investigation as well. (25) Nine months later, after an intensive investigation, the author of the page was determined to be a former Oakland police officer who had recently been terminated because of his role in a fatal shooting. (26) According to a news account, the investigation of the Instagram page concluded with the Oakland Police Department disciplining "nine officers for their misuse of social media," though "[n]ot all of the discipline ... was related to the Instagram account" itself. (27)

On the other side of the country, the New York City Police Department (NYPD) was similarly scandalized by the discovery that the commander of its Equal Employment Opportunity Division was secretly posting racist, sexist, homophobic, anti-Semitic, and otherwise offensive comments on an anonymous message board, the Rant. (28) The identity of the police commander came to light serendipitously, (29) as is typical in many of these cases, because police departments take almost no proactive steps to investigate their officers' posts. (30) In 2020, the Rant was mentioned in New York Magazine (31) An investigator working for city council read the story and began scrolling through the site. (32) According to news reports, he noticed that an anonymous user, "Clouseau," had "posted hundreds of messages on the Rant, many of which attacked Black people, Puerto Ricans, Hasidic Jews and others with an unbridled sense of animus." (33) Among the posts, Clouseau called President Obama a "Muslim savage," described neighborhood baby showers as incomplete "without a group of Hennessey fueled savages causing their own brand of savagery," and predicted that Orthodox Jews were headed for "demise" because of "all of the inbreeding." (34) The first homicide of 2020, Clouseau predicted, would be "a gunshot wound in the 4-7 [precinct] over the last piece of jerk chicken at the buffet." (35) The city-hall investigator followed a number of biographical clues in Clouseau's posts--his start date on the police force, the date he proposed marriage to his wife, and the date that his mother passed away--straight to James Kobel, head of the NYPD's Equal Employment Opportunity Division. (36) A forensic examination of Kobel's phone and computer confirmed he was the author. (37) At a disciplinary trial in which Kobel chose not to participate, the allegations against him were substantiated, and he was dismissed. (38)

At the federal level, Congress is also enmeshed in a sprawling investigation of offensive social media posts by law-enforcement officers. In 2019, investigative reporting by ProPublica and the Intercept uncovered the private Facebook group, "I'm 10-15." (39) (The code sign "10-15" stands for "aliens in custody.") (40) As the Intercept explained it, the group was "a secret, invitation-only Facebook group for current and former Border Patrol agents that featured vulgar, violent, and misogynistic content directed at migrants and lawmakers." (41) Despite containing over 9,500 Border Patrol agents and supervisors, including two successive Border Patrol chiefs, (42) the private group triggered scant disciplinary action until it was exposed in the news. (43) Among the offensive posts featured on "I'm 10-15" was a doctored photo of "a smiling President Donald Trump forcing [Representative Alexandria] Ocasio-Cortez's head toward his crotch," as well as numerous comments making light of immigrants' deaths. (44) A...