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Police Officers, Insurrection Day, and the First Amendment

Does the Constitution protect the jobs of officers whose gullibility over conspiracy theories led them to rally in Washington to overturn the election?

February 1, 2021
DC
Kent Nishimura/Getty

In a famous dissent writ­ten 102 years ago, Supreme Court Justice Oliver Wendell Holmes issued his clarion call for a vigor­ous First Amend­ment based on the free market­place of ideas. But his epic “fight­ing faiths” passage ended with this caveat: “I think that we should be etern­ally vigil­ant against attempts to check the expres­sion of opin­ions that we loathe and believe to be fraught with death, unless they so immin­ently threaten imme­di­ate inter­fer­ence with the lawful and press­ing purposes of the law that an imme­di­ate check is required to save the coun­try.” 

An immin­ent threat of imme­di­ate inter­fer­ence with the law — that’s a good descrip­tion of the Trump-infused insur­rec­tion at the Capitol in Janu­ary. We all have a First Amend­ment right to speak and to assemble and to protest for the causes that anim­ate us. We all have a right to take to the streets to express ourselves so long as we are peace­ful and follow the law. The govern­ment cannot prosec­ute or other­wise punish us for these actions. Every­one from Black Lives Matter protest­ers to white suprem­acists has this right. Police officers do, too.

But none of the indi­vidual freedoms enshrined in the Bill of Rights come to us without limit­a­tions. We cannot use our words to defraud our neigh­bors or extort our rivals. We cannot use our words to plot a murder or conspire to rob a bank or to incite viol­ence.

And in the case of police officers and the First Amend­ment, the limit­a­tions go even further when it comes to whether they can both express certain views and be cops. The Supreme Court has long held that public employ­ees (like police officers) have narrower free speech rights than the rest of us in certain circum­stances. In other words, as Holmes wrote in 1892 when he was on the Massachu­setts Supreme Court, a cop has a consti­tu­tional right to talk polit­ics but no consti­tu­tional right to be a cop.

Off-duty officers had the right to go to Wash­ing­ton to take part in the Trump rally on Janu­ary 6 designed to stoke insur­rec­tion and pres­sure lawmakers to over­turn the results of the free and fair pres­id­en­tial elec­tion. But the rest of us have the right, indeed the oblig­a­tion, to eval­u­ate what the exer­cise of that right by those cops says about their profes­sional judg­ment, their tempera­ment to be peace officers, and their commit­ment to uphold­ing the law in the future based on the object­ive real­it­ies of the world. Some of these cops will lose their jobs because they took part in a Trump rally qua riot fueled by worth­less “evid­ence” of elec­tion fraud and big lies.

We don’t yet know how many police officers atten­ded the Trump rally that turned into a deadly riot. The Wash­ing­ton Post two weeks ago  repor­ted the count was “at least 13,” but the number is surely much higher. We know that line officers went to the Capitol to, at a minimum, protest the results of the elec­tion and we know that sher­iffs did, too. We know that some already have been suspen­ded or charged. And we know that their first line of defense after being caught has been to wrap them­selves in the First Amend­ment and say they were merely exer­cising their rights as private citizens.

It’s also possible that some of the police officers who parti­cip­ated in the Trump rally-turned-riot are fired for their roles in the insur­rec­tion (whether they are prosec­uted or not). Some already have been. And it’s possible that some will then turn around and sue their depart­ments for retali­ation by arguing that they were uncon­sti­tu­tion­ally dismissed for exer­cising free speech rights. Those lawsuits will likely turn on how judges apply a legal balan­cing test that weighs the officer’s right to speak versus their employ­er’s right to have a police depart­ment that does­n’t include in its ranks conspir­acy theor­ists who embrace base­less alleg­a­tions that are used to foment insur­rec­tion. 

That narrat­ive has spread across the nation, even as we learn more about the extent to which cops were involved on Janu­ary 6. “We are making clear that they have First Amend­ment rights like all Amer­ic­ans,” Hous­ton Police Chief Art Acevedo said last week when he accep­ted the resig­na­tion of an 18-year veteran of the depart­ment who was involved in the Capitol riot. “However, enga­ging in activ­ity that crosses the line into crim­inal conduct will not be toler­ated.” The prob­lem is that Aceve­do’s first sentence is simply not true. Even when they are off-duty, case law tells us that police officers don’t have the same First Amend­ment rights as civil­ians.

The original rule (some­times called the “Pick­er­ing/Connick test” to identify the cases which spawned it) comes from two Supreme Court rulings issued nearly a gener­a­tion apart, in 1968 and 1983, that define First Amend­ment protec­tions for public employ­ees — i.e., those work­ing for the govern­ment. Judges must balance the interests that police officers have in express­ing them­selves on polit­ical issues against the interests that police depart­ments (and frankly the rest of us) have in being confid­ent that cops can do their jobs effect­ively and fairly.

In a 2006 case, the Supreme Court explained some of its rationale for limit­ing a public employ­ee’s free speech protec­tions. In that case, about a prosec­utor in Los Angeles who blew the whistle on poor police work and was fired for it, Justice Anthony Kennedy wrote, “Without a signi­fic­ant degree of control over its employ­ees’ words and actions, a govern­ment employer would have little chance to provide public services effi­ciently. Thus, a govern­ment entity has broader discre­tion to restrict speech when it acts in its employer role, but the restric­tions it imposes must be direc­ted at speech that has some poten­tial to affect its oper­a­tions.” (cita­tions omit­ted)

“The courts have long recog­nized that public employ­ees have a First Amend­ment right to parti­cip­ate in public debates on import­ant matters. However, govern­ment employ­ers may punish employ­ees whose speech, even outside of work, comprom­ises their abil­ity to do their job,” Ben Wizner, director of the ACLU’s Speech, Privacy, and Tech­no­logy Project, told me via email. “Although each case has to be decided on its own facts, courts have upheld discip­line or termin­a­tion of police officers, who are armed agents of the state, for making state­ments in their personal capa­city that under­mine their abil­ity to main­tain the trust of the community they serve.”

Let me offer a hypo­thet­ical that I think fairly illus­trates the issue in the context of the Capitol riot. Pretend for a moment that you are a police chief. A body is found in your town. An invest­ig­a­tion ensues. Half the town believes the death is a natural one. Half the town thinks it’s murder. The evid­ence is collec­ted. It becomes clear beyond all reas­on­able doubt that the death was a natural one. Scores of judges, of all ideo­lo­gical stripes, say so. So do the witnesses with direct know­ledge of what happened to the victim. With no axe to grind, with no agenda other than to tell the truth, one by one they testify that there was no murder. 

In spite of all of this, a local cop refuses to believe the evid­ence before him. Refuses to respect the rulings of all those judges or the testi­mony of all those witnesses. So skep­tical of object­ive truths, so unwill­ing to appre­ci­ate the evid­ence he can see with his own eyes, he’s remark­ably not skep­tical of the conspir­acy theor­ies that tell him the victim was murdered. The judges are in on the scam, this cop believes, and so are the witnesses. The murder was part of a crime so elab­or­ate it involves count­less co-conspir­at­ors and a level of coordin­a­tion that beggars belief. No matter, the cop says, he knows what he knows. It was murder.

The cop does­n’t just indulge in this fantasy in his own mind or in his private life. He does­n’t just spread his views at his local bar or a neigh­bor’s barbe­que. He actively parti­cip­ates in the fantasy, he broadens and strengthens it, by join­ing with count­less other like-minded conspir­acy theor­ists who travel to Wash­ing­ton to take part in a rally centered around the idea that the victim was murdered. And not just a demon­stra­tion in support of that lie but also the danger­ous propos­i­tion that the people who are saying other­wise — that is, the people whose view of the world is rooted in object­ive evid­ence — should be torn from office or killed.

The cop returns home and finds himself criti­cized for taking part in the event. So he says he was merely parti­cip­at­ing in protec­ted speech as a private citizen. He says he had no idea a polit­ical rally would turn viol­ent. What is his boss supposed to do about that? Here’s a cop who has shown a propensity for ignor­ing evid­ence, who has disrespec­ted judi­cial rulings, and embraced conspir­acy theor­ies with alarm­ing gull­ib­il­ity. Here’s a cop who makes common cause with an angry mob. What do these things say about his abil­ity to separ­ate fact from fiction on his job? What do they say about his abil­ity to synthes­ize facts and evid­ence in a routine crim­inal invest­ig­a­tion? Should a jury trust this cop’s cred­ib­il­ity on the witness stand?

These are precisely the sorts of consid­er­a­tions the Supreme Court says judges must weigh in eval­u­at­ing the First Amend­ment claims of police officers who are fired for off-duty beha­vior. Assum­ing the police officers who atten­ded the rally were enga­ging in lawful speech and not illegal conduct, does that polit­ical speech affect public percep­tions of the law enforce­ment agency? Does it under­mine the rela­tion­ship between the speaker and his fellow officers? Does it impede the abil­ity of the depart­ment to recruit officers, or gener­ate hostile media cover­age? The cops who traveled to Wash­ing­ton to support base­less elec­tion fraud claims won’t be able to avoid these ques­tions if they want to prevail with their lawsuits.

For me, the answers to these ques­tions are self-evid­ent. There should be a presump­tion of disqual­i­fic­a­tion for any law enforce­ment officer who went to the Trump rally, whether they parti­cip­ated in the subsequent storm­ing of the Capitol or not. A cop who believed two months after the elec­tion that it had been stolen by Joe Biden should be required to explain under oath why he or she deserves to continue to be a peace officer. A cop who believed that count­less state elec­tions offi­cials, and federal and state judges, were part of a vast conspir­acy to defeat Trump must explain why he ever should be able to invest­ig­ate a crime or testify under oath as a cred­ible witness for the state.

These jour­neys to Wash­ing­ton for Trump’s rally were not spur-of-the-moment decisions. They were planned. At every step along the way the parti­cipants could have opted out, could have said to them­selves that as peace officers they would not march for a cause based so obvi­ously on a series of partisan lies. You can bet that federal prosec­utors will be making a form of this argu­ment if and when the crim­inal trials against the alleged Capitol rioters proceed. You can also bet that attor­neys repres­ent­ing police depart­ments will be making the argu­ment too to defend against retali­ation lawsuits by fired cops.

These employ­ment retali­ation cases are so fact-specific it’s hard to discern patterns. But there is lower court preced­ent, too. The U.S. Court of Appeals for the Fifth Circuit in 2015 ruled in favor of city offi­cials who fired a police officer for post­ing comments on Face­book that were crit­ical of her bosses. Susan Grazi­osi was speak­ing as a public employee, the judges concluded, but was not speak­ing on a matter of public concern because her complaints focused on internal police matters. But the court then concluded that even if Grazioisi were speak­ing out on a public matter (as our sedi­tion­ist cops surely were) she still would have lost her employ­ment lawsuit because police offi­cials have a strong interest in prevent­ing insub­or­din­a­tion.

And it’s unclear how the current Supreme Court will look at these issues. It is much more conser­vat­ive than it was in 2006 when Justice Kennedy helped narrow the free speech rights of public employ­ees. And it is certainly more conser­vat­ive than it was in 1968 when the it first artic­u­lated the legal test that lower court judges must apply in these cases. It’s also unclear, at least now, how hard police union offi­cials will fight for the rights of these cops who are charged with federal crimes for their roles in an event that led to the death of one Capitol Police officer and injur­ies to scores more.

David Hudson, an expert on free speech at the First Amend­ment Center, disagrees with me. He told me, echo­ing Wizner, that punish­ing officers for merely attend­ing the Trump rally, regard­less of the conspir­at­orial theor­ies that led them there, would be an imper­miss­ible infringe­ment on those officers’ consti­tu­tional rights. “Police officers should not be dismissed gener­ally because of their polit­ical beliefs or asso­ci­ation with partic­u­lar view­points or such,” Hudson told me. “That said, any police officers who engage in unlaw­ful conduct or riot­ing should be subject to discip­line. Police officers are held to a higher stand­ard and must be posit­ive examples. They are there to protect and service, not disrupt and riot.” 

But the cases involving insur­rec­tion­ist cops who parti­cip­ated in the Capitol riot will be easy to resolve. Cops who broke the law should and will be fired and they will lose their retali­ation claims if they bring them. The closer ques­tion is the one I am posing: where the officer merely atten­ded the Janu­ary 6 rally to promote unfoun­ded elec­tion fraud theor­ies in the hope of over­turn­ing the elec­tion. When police officers exer­cise their First Amend­ment rights by reveal­ing them­selves to be persist­ently hostile to veri­fi­able facts, they are telling the rest of us a great deal about the judg­ment they bring to their work. They are saying they no longer deserve to be taken seri­ously as cred­ible officers of the court. 

Hudson, the free speech advoc­ate, says that the law does and should allow a cop to believe in — and act on — conspir­acy theor­ies and still carry a badge so long as his conduct is lawful and appro­pri­ate. That the law recog­nizes that the same mind could sustain the fantasy that Donald Trump won the 2020 pres­id­en­tial elec­tion and also main­tain the capa­city for the reasoned judg­ment neces­sary to carry out the duties of a law enforce­ment offi­cial — and that the former does­n’t infect the latter. Tell that to the victim who wants her crime solved quickly and correctly or to the defend­ant in the dock wait­ing for that conspir­at­ori­al­ist, insur­rec­tion­ist cop to testify against him.

The views expressed are the author’s own and not neces­sar­ily those of the Bren­nan Center.