Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Wednesday, December 8, 2021

Abel on Cop-"Like": The First Amendment, Criminal Procedure, and Police Social Media Speech @UCHastingsLaw @StanLRev

Jonathan Abel, University of California, Hastings, College of Law, is publishing Cop-'Like': The First Amendment, Criminal Procedure, and Police Social Media Speech in the Stanford Law Review. Here is the abstract.

What happens when a law enforcement officer makes an offensive comment on social media? Increasingly, police departments, prosecutors, the courts, and the public have been confronted with the legal and normative questions resulting from officers’ racist, sexist, and violent social media comments. On the one side are calls for severe discipline and even termination. On the other side are demands that officers, like others, be permitted to express their views without fear of government retaliation. To this point, the regulation of police social media speech has largely been conceived of in First Amendment terms. But criminal procedure doctrine has also begun to be employed in the regulation of police social media speech. Because an officer’s comments may affect her ability to testify, criminal procedure and, specifically, Brady v. Maryland, have great potential to govern this difficult area of conduct. By using both First Amendment and criminal procedure doctrines to analyze the problem of police social media speech, the Article is able to shed new light on the problem and on possible solutions. Among its core contributions, this Article argues: (1) There is a la-tent and irreconcilable tension between the First Amendment and criminal procedure paradigms for regulating officers’ speech. (2) Pseudonymous, private, and otherwise-“hidden” speech presents a significant problem that is both ignored and exacerbated by the First Amendment paradigm. It can be addressed only by a criminal procedure approach to regulating police social media speech. (3) Police departments and prosecutors’ offices must start to proactively monitor their officers’ social media speech, as the failure to do so undermines officers’ free speech rights, defendants’ criminal procedure rights, and the public’s faith in the legitimacy of the police force.

Download the article from SSRN at the link.

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