To what extent is online speech by North Carolina law enforcement officers protected under the First Amendment? Two recent incidents involving social media posts by officers at the Orange County Sheriff’s Office and the Durham Police Department have raised legal questions.
On Sept. 22, the Orange County Sheriff’s Office announced the firing of Detention Officer Brian Edwards for violations of the office’s Standards of Conduct and its Speech, Expression and Social Networking policy.
Days earlier, right-wing social media accounts circulated screenshots of posts alleged to be made by Edwards in which he described himself as “antifa” and suggested “it may even be time to bring back the guillotine.”
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“Antifa” is slang in wide use on the internet for “anti-facist,” but is not a specific organized group. The guillotine was in wide usage in France during its revolution in the 1790s, but has never been used for executions in the United States.
Meanwhile, in neighboring Durham County, Police Chief Patrice Andrews stirred similar online furor but remained in her job after making a Facebook post about the assassination of conservative activist Charlie Kirk.
Carolina Public Press spoke with leading First Amendment attorneys to ask where the lines are drawn when it comes to regulating the online activity of law enforcement officers and other public employees and about the shifting culture of free speech in the wake of Kirk’s murder.
Controversies involving law enforcement officers
On Sept. 20, a popular X account with the handle Mostly Peaceful Memes shared several photos of Edwards and screenshots of posts that he made on the social media app Threads.
“I maintain that the biggest mistake the US government has ever made was letting the traitors from the civil war off the hook and allowing them to come back into our country without punishment,” read one of the posts.
“When this is over and the right wing is once again defeated. We will not make that same mistake. There will be war crimes trials and I can’t wait to see every single one of them thrown in prison for the rest of their lives.
“It may even be time to bring back the guillotine.”
The X post which shared the screenshots garnered 2.8 million views and 10,000 reposts. Two days later, Edwards was fired.
In the press release announcing Edwards’ termination, Orange County Sheriff Charles Blackwood stated that his office “must maintain the public trust as we go about our mission to protect, serve and treat everyone with dignity and respect.”
The sheriff’s office did not specify which of Edwards’ posts were the cause of his firing, but did provide CPP with copies of its social media policy, which prohibits statements that indicate disregard for the law or support of criminal activity.
Edwards himself couldn’t be reached for comment before publication.
In Durham, Mayor Leonardo Williams resisted online calls to seek the removal of Andrews, the city’s police chief, after a Facebook post she had made addressing Kirk’s death was similarly circulated in conservative social media circles.
“I won’t stop being outraged at the way this man is being honored by people that I thought I knew,” Andrews wrote in her now-deleted post.
“This man, who disguised himself as a Christian, shamed Black women like me, believed that gun violence was necessary to preserve the Second Amendment and created a culture of divisiveness through hate speech.
“So, at the time of his death, I chose to give him the empathy that he didn’t believe in and certainly didn’t believe that people like me deserved. But, to know many of you STILL support him despite his horrible rhetoric … I cannot.”
Similar to Edwards’ situation, conservative social media accounts circulated screenshots of Andrews’ post and called for her removal. A Change.org petition calling for her resignation gathered more than 2,100 signatures.
Williams voiced his support for Andrews at a Sept. 15 City Council meeting and implored people upset with her post to respect everyone’s First Amendment rights equally.
“Freedom of speech is accessible to us all, whether we like each other or not,” Williams said.
“It is for all of us. If you’re walking on the soil in this country, you cannot be selectively outraged trying to determine who gets access to that or not.”
Drawing the line on public employees’ speech
How do public employers determine what speech is protected or not in the social media age, and do those protections apply the same to law enforcement officers?
Amanda Martin, a supervising attorney at Duke Law’s First Amendment Clinic, told CPP that the government’s role in protecting the Constitutional rights of citizens can get muddled when it also acts as an employer.
The courts have developed a legal test to determine the ability of a government employer to regulate employees’ speech.
For speech by law enforcement officers or other public employee to be protected, the employee must demonstrate it was about a matter of public concern and that it was outside the employee’s core job duties.
If those prongs are met, the court enters into a balancing test where it weighs the competing interests of the employee’s right to free speech versus the government’s duty to provide public services.
“And so, even if you say the speech is about a matter of public interest, and it wasn’t about somebody’s core job, and therefore you start with the premise that the employee is protected, if it is so disruptive to the employee doing his or her job that it becomes a significant problem for the employer, there still can be some regulation,” Martin said.
“You can see that that is not a bright-line determination.”
In other words, it’s complicated, Martin said, and it can be particularly tricky when a public employee faces repercussions for posts on their personal social media account.
“Something that courts have looked at in evaluating disruption is the narrowness or breadth of the audience,” she added.
“So if an officer says something to his neighbor during a cookout, that’s probably not going to be extraordinarily disruptive to the officer’s work out in the public square. But if an officer posts something on a fully publicly available social media site, it could be more disruptive.”
Courts might also consider the employee’s relationship to the public at large, meaning a law enforcement officer that works out in the community could face stricter scrutiny than an employee with a desk job.
“We rely a great deal on the public having trust and confidence in law enforcement officers, so that relationship and potential disruption can be different for someone like a law enforcement officer versus someone who’s not public facing at all,” Martin said.
A shifting public standard clashes with legal precedent
Stephanie Jablonsky, an attorney and member of the public advocacy team at the Foundation for Individual Rights and Expression, told CPP that the weaponization of social media in prompting the firings of public employees is a cause for concern.
She’s seen an increase in such behavior since Kirk’s killing last month.
“It looks like the goalposts for public tolerance of speech moved somewhat, but the law hasn’t changed,” she said.
“The First Amendment is still very much intact. And just because you have a job with a public employer, doesn’t mean that you lose those rights.”
Jablonsky agreed with Martin that the legality of a public employee’s termination for their speech is context-specific, but she still finds herself perturbed by the broader trend of conservative influencers leveraging their online following to get university faculty, law enforcement officers and other public employees fired.
“It takes one social media influencer for a post to go viral and for somebody’s life to get turned upside down,” she said.
“I mean, that is a real, undeniable fact, and it’s horrible for the culture of free speech.”
In the context of Edwards’ firing, Jablonsky added that political hyperbole is generally protected free speech because it is not a “true threat” of violence, as determined by the U.S. Supreme Court in Watts v. United States.
Jablonsky said she believed Edwards’ vague phrasing regarding the “right wing” and the guillotine was more hyperbolic than a true threat of violence.
She also said a separate post in which Edwards declared himself “antifa” would generally be protected speech despite recent moves at the federal level to designate the left-wing political movement of the same name a domestic terrorist organization. However, she clarified, a court might find that Edwards’ role as a law enforcement officer might affect its determination in a balancing test.
There’s been no indication that Edwards will challenge his firing in court. He told WRAL in a statement that he respected the sheriff’s office but disagreed with how his situation was handled, and that he was focused on “moving on.”
The lesson from the incidents involving him and Andrews is that in today’s social media landscape, even public employees must be increasingly cautious about the political statements they make online, Martin said.
“The thing that we all have to remember is that we are in a world in which we no longer control the audience.”
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