Publication Date

6-2022

Abstract

What happens when a law-enforcement officer makes an offensive comment on social media? Increasingly, police departments, prosecutors, courts, and the public have been confronted with the legal and normative questions resulting from officers’ racist, sexist, and violent social media comments. On one side are calls for severe discipline and termination. On the other are demands that officers be permitted to express their views without fear of retaliation. The regulation of police social media speech has been largely conceived of in First Amendment terms. But because an officer’s comments affect her ability to testify, criminal procedure is also employed in regulating this speech. This Article fuses First Amendment and criminal-procedure doctrines to shed light on the problem of, and potential solutions for, the regulation of social media speech by officers.

This Article makes three core contributions. First, it describes the tensions between the First Amendment and criminal-procedure paradigms for regulating police social media speech. Second, it defines the challenges posed by pseudonymous, private, and otherwise “hidden” speech, which the criminal-procedure paradigm, but not the First Amendment one, is equipped to address. And third, this Article argues that police departments and prosecutors must proactively monitor their officers’ social media speech or risk undermining defendants’ criminal-procedure rights, the public’s faith in the legitimacy of the police force, and even the speech rights of police officers themselves.

Document Type

Article

Publication Title

Stanford Law Review

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