Peoria sergeant's post of Obama photo leads to debate

by Sonu Munshi - Feb. 5, 2012 12:00 AM
The Republic | azcentral.com

Constitutional-law attorneys and free-speech advocates are divided over whether a northwest Valley police sergeant was within his First Amendment right to post a Facebook photo showing a T-shirt with President Barack Obama's image apparently riddled with bullets.

But they largely agree Sgt. Pat Shearer has damaged his 25-year career with the Peoria Police Department.

Experts say Shearer's law-enforcement job puts him in a more delicate position than the average citizen, although one questions whether the department's social-media policy is so broad as to infringe upon his free-speech rights.

At the least, the incident serves as a reminder that there is no such thing as privacy online, said Pamela Rutledge, director of Media Psychology Research Center in California.

Caution on social media

Shearer's post last month drew national media attention after the Secret Service began looking into a photo of seven Peoria students, some posing with guns. One held what appears to be a shot-up T-shirt with Obama's image above the word HOPE. The Facebook posting also triggered an internal investigation by Peoria police. Shearer is off patrol duty, assigned to administrative tasks for now.

Legal experts say people don't sign off on their First Amendment rights when they are hired by a government agency, but freedom of expression comes with limits.

About a decade ago, a San Diego police officer was fired for selling sexually explicit videos in which he stripped off a police uniform.

The U.S. Supreme Court upheld the termination because of its links to his public-safety career, which it ruled brought disrespect upon the police force.

Several experts said Shearer's posting falls within the realm of political speech, which may be constitutionally protected.

But if the expressed activity is related to an employee's official profile, it becomes murkier.

"If the employee is wearing a uniform, for example, this implicates the department for which he works even if the speech expressed was meant to express a personal, not official, view," said Toni Massaro, a law professor at University of Arizona.

The Peoria sergeant was not posing in the photo, but his Facebook profile picture showed him in uniform. The profile, which was grabbed by another media outlet before being removed, identified him as working for Peoria police.

Massaro said many public employers caution workers who hold sensitive positions to exercise judgment about their conduct off the job including on social media, a powerful form of speech "given its range and potentially global and permanent nature."

In general, the legal test on the boundaries of free speech is if it incites someone toward imminent violent action or to break the law, said James Weinstein, a constitutional-law professor at Arizona State University.

Unclear intentions

Weinstein said the picture could be interpreted as suggesting violence against the president. But the other argument is that the photo is a legitimate protest or commentary on social concerns.

"Generally speaking you can't be punished for posting politically obnoxious pictures even though it may refer to the death of the president, unless it's a true threat," Weinstein said.

The U.S. Supreme Court had sided with a teenager who during an anti-Vietnam war rally had said if he were forced to carry a rifle, the first man he'd want to get in his sight would be President Lyndon Johnson. The high court ruled the law cannot be used to suppress "political hyperbole."

Peter Scheer, executive director of the California-based First Amendment Coalition, said while the Secret Service has the right to look into any potential threats against the president, he described this instance as a seemingly political statement, akin to an effigy of a prominent figure being burned in public.

"It's a violent image but it doesn't mean anyone means violence toward the subject," Scheer said. "It may express the desire to want a person out of office."

He said while it's not prudent for a police officer to post anything misconstrued as condoning violence toward anybody, "that message has to be pretty clear before we allow some kind of governmental punishment to be imposed."

The police department's policy states that "employees shall not use the agency's name, logo ... uniform ... on any Internet site" or public or private forum without authorization. It also states "employees shall not post ... information ... to the Internet" or any public or private forum "that would tend to discredit or reflect unfavorably upon the department or any of the department's employees."

Scheer said the policy is so broad that the agency may be able to apply it to any situation to say its integrity was harmed.

"I'm not sure they can enforce a policy that would preclude a police officer from engaging in constitutionally protected speech," Scheer said.

Jack Glaser, associate professor of public policy at the University of California-Berkeley, said he can see why there's been such a huge reaction to the incident.

"It's disturbing that as a police officer he would do this and think it's worth sharing," Glaser said. "He may be within his First Amendment rights but it reflects bad judgment."

Rutledge of the media research center said such incidents occur when people are not well-informed about the digital world.

"Online information is searchable, accessible, can travel very quickly across many networks and is permanent," Rutledge said. "My grandmother used to say, 'never talk about people in an elevator because you don't know who is listening.' The whole world is the elevator now."

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Peoria sergeant's post of Obama photo leads to debate