By Edward S. Robson
Robson Law
News coverage of an incident in which a firefighter video of a fatal crash victim went viral has many departments and agencies hurrying to reexamine their social media policies or draft them for the first time. But just as danger hides in seemingly innocuous places on the emergency scene, the law also holds a variety of traps for the unwary. A poorly drafted social media policy can create unexpected sources of liability.
The goal of a social media policy is to promote privacy, both that of the people we serve and of our fellow responders. These policies attempt to cut off the dissemination of sensitive or embarrassing information by prohibiting people from posting or otherwise sharing it. Stated somewhat differently, social media policies attempt to regulate a person’s ability to speak or express themselves in various media channels if that expression includes sensitive information.
In the case of the Georgia firefighter, it appears he distributed the video for his own personal pleasure and shock value. What if he took the video and posted it on YouTube as part of a campaign to promote traffic safety or seat belt use?
The First Amendment to the U.S. Constitution, as well as many state constitutions, sharply limits the manner in which the government may interfere with an individual’s freedom of expression. Generally speaking, the government may not impose restrictions on speech unless they are “content neutral.”
To be considered content neutral, a regulation must be both “subject-matter neutral” and “viewpoint neutral.” Courts presume that content based restrictions are invalid and place the burden on the government to demonstrate that the regulation has a compelling purpose.
It is nearly impossible to demonstrate a compelling government purpose. For example, a law that prohibited people from writing blog posts critical of a town’s mayor but allowed posts that were complimentary would be a viewpoint restriction and not permissible under the First Amendment. Likewise, a rule that flatly prohibits a person from writing newspaper articles about the war in Afghanistan is viewpoint neutral but is an impermissible subject matter restriction.
Courts are much friendlier toward content neutral regulations. If a regulation is content neutral, the government must only demonstrate an important purpose for the regulation. For example, a court would likely uphold a noise ordinance that prohibited protesting in residential neighborhoods after 10 p.m. since it encompasses all subjects and viewpoints and has an important non-speech based purpose.
Both fire departments and EMS agencies run by cities, towns or municipalities and volunteer companies are government agencies for First Amendment purposes and so their social media policies are a form of government regulation. Just like any other form of government regulation, departments must evaluate these policies for First Amendment compliance.
So what should a department do? First, avoid overbroad policies and those that make distinctions based on subject matter or viewpoint. For example, “firefighters may not post anything critical of the department or fellow firefighters” or “firefighters may not post anything about the city” are both susceptible to First Amendment challenge.
Similarly, consider multiple polices to specifically identify what conduct is prohibited. “Social media” is a slippery term. It encompasses a variety of mediums, including blogs, both those organized by private individuals and those organized by departments themselves, Facebook, Twitter, Foursquare, and discussion boards. Each of these channels presents different types of risks and by using multiple policies, a department can prohibit only the conduct that is most troubling.
Second, be sure to have an identifiable and well-articulated rationale for why using social media in a particular way is prohibited. The fact that a speech is annoying or offensive, without more, is not an acceptable rationale. On the other hand, a policy designed to prevent speech that interferes with a department’s efficient operation is more likely to withstand challenge.
One acceptable purpose may be to ensure that responders comply with their HIPAA responsibilities. Of course, if the purpose of the policy is to ensure HIPAA compliance, it can restrict no more speech than HIPAA itself. It is worth noting, however, that law professors have sharply criticized HIPAA for violating the First Amendment.
Finally, consult an attorney before actually disciplining or terminating a responder because of something they said or posted on social media. The application of the First Amendment to particular employment situations can be very complicated and this article is no substitute for an attorney licensed to practice in your state. A small investment upfront can save huge litigation costs later.
About the author:
Edward S. Robson is the managing member of Robson&Robson, LLC, a law firm located just outside of Philadelphia. Mr. Robson has represented volunteer fire and ambulance companies in a variety of matters, including First Amendment issues, civil rights, employment, contract negotiations, internal governance, personnel policies, SOP’s and equipment purchases. He has volunteered as an EMT since 2003 and currently serves as a member of the board of directors of a large suburban fire company. Mr. Robson graduated with honors from both Villanova University and Villanova University School of Law. He can be reached at erobson@robsonlaw.com or (610) 825-3009.